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Publication restriction:	Not to be published prior to the conclusion of the proceedings at first instance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)

1. 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".

2. 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.

3. 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

4. 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 the person who made the admission, being an interview 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

(b)   the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.

(3)   The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).

(4)   In this section:

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) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.

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. Ms Rigg contended that the prosecution has failed to establish that there was a reasonable excuse as to why a tape recording of a kind referred to in subparagraph 281(2)(a)(ii) could not be made. To explain and then consider that contention, it is necessary to say something further about the chronology of events.

Chronology

6. As referred to in earlier judgments, Ms Diec disappeared on or around 27 July 1998. The Crown case is that the accused collected her in a van on that morning, drove it to his father's house, strangled her and then disposed of her body. In particular, the Crown contends that the accused was driving a white van with the registration number PAQ-205, which he had sourced through Daniel Soraurer, who in turn had sourced it through an associate, Roger Benchoam.

7. From the response of the defence to the Crown case statement it appears to be accepted that, at least on the morning of 27 July 1998, the accused had access to that van, although it is not necessarily conceded he was driving the van during the time that Ms Diec disappeared.

8. During July 1999, an associate of the accused, Geoffrey Maurer, approached the police indicating that he believed the accused was involved in Ms Diec's disappearance. It is unnecessary to explore the evidence surrounding that approach and why not a great deal of weight was afforded to it at the time by the investigating police. In any event, as a result of that approach, and perhaps others, in July 1999, Mr Powell spoke to the accused. The contents of their discussion were not electronically recorded, but were set out in a note prepared by Mr Powell, which records that he conducted an "interview of a suspect".

9. Mr Powell stated that when he spoke to the accused at the time he agreed to be interviewed about Ms Diec's disappearance. However, the accused also stated that he did not want to be electronically interviewed and he otherwise denied being involved in her disappearance.

10. In a statement dated 31 July 2019, Mr Powell stated that he did not seek any later adoption by the accused of the answers he gave to questions posed during the interview, because "[t]hey were exculpatory statements and I did not believe them to be admissions".

11. For present purposes, it suffices to state that the trail of the investigation petered out some time shortly after that point and does not appear to have been renewed until Detective McKay and Detective Hayman resumed the investigation into Ms Diec's disappearance in May 2013. The no doubt difficult task of pursuing the investigation commenced. It appears they identified the accused as their most likely suspect.

12. During the course of 2014 and 2015, their activities were focussed on identifying the course of possession of the van that they understood to have been involved in Ms Diec's disappearance, based upon the statement of a person who may have witnessed Ms Diec being abducted. This led them on a trail whereby, during 2015, they were seeking to establish that Mr Soraurer had made available to the accused a van with the number plate PAQ 205, which had been sourced from Roger Benchoam, his associate. It also led them to interview Mr Powell in 2015, who by then had retired from the Police Force.

13. As was noted in R v Tarantino(No 4) [2019] NSWSC 1055 (“Tarantino (No 4)”), the accused was the subject of an ERISP on the evening of 20 November 2016, then a video recorded search for Ms Diec's body on 23 November 2016 and was then re-interviewed in an ERISP on 28 November 2016. During the ERISP on 20 November 2016, the accused made reference to using a van that he had borrowed to abduct Ms Diec. However, during none of those interviews was the accused asked to confirm whether or not he had denied to Detective Powell in July 1999 that he had borrowed a van through Mr Soraurer, or otherwise asked to adopt or deny that he had made the statements attributed to him by Mr Powell.

Submissions

14. In her submissions, Ms Rigg accepted that, in light of the evidence, there was a reasonable excuse as to why a tape recording was not made by an investigating official, namely Mr Powell, of the interview with the accused in July 1999, such that s 281(2)(a)(i) does not represent any obstacle to the admission of that part of Mr Powell's statement. However, Ms Rigg submitted that there was an absence of a reasonable excuse as to why no tape recording could be made of an interview with the accused about the making and terms of the admission that was conducted at a later time, specifically, during the period 21 to 28 November 2016, such that s 281(2)(a)(ii) was not satisfied. On that basis, Ms Rigg submitted that s 281(2)(b) had not been established and thus evidence of the admission had to be excluded.

15. Ms Rigg submitted that, in circumstances where Detectives McKay and Hayman can be taken to have been aware that the accused allegedly told Mr Powell that he did not borrow any van at the time of Ms Diec's disappearance, and that they believed to the contrary, then there was no reasonable excuse for why there was not an attempt to request the accused to accept that he had made that statement to Mr Powell during the interviews in November 2016.

16. The Crown Prosecutor submitted that, firstly, the length of time between the statement to Mr Powell and the conduct of the interview in late 2016, namely, approximately 17 years, meant that, in effect, there was a reasonable excuse for why the adoption of the admission could not be sought. He also submitted, having regard to the decision of the High Court in Nicholls v The Queen [2005] HCA 1, that the section was not truly engaged in circumstances where, at the time the admission was made and for a considerable period thereafter, the police had no reason to apprehend that what they had been told in 1999 amounted to any form of “admission”.

17. Otherwise, I note that the premise of both sets of submissions was that the statement made by the accused to Mr Powell in July 1999 constituted an "admission" for the purposes of the provision.

Decision

18. I do not consider that there should be any attempt to put gloss on the words of s 281 in an attempt to divine some purpose, much less some limitation, upon its operation to the circumstances where the police could reasonably be expected to seek confirmation of the admission within a short period of time. The terms of the provision make it clear that the evil to which the section is directed was the debates that bogged down the courts of the past, namely whether or not the particular admission was actually made. It seeks to address that by, effectively, requiring that they be electronically recorded, or later adopted in an electronic recording, unless there was a reasonable excuse as to why that could not be made.

19. True it is that the passage of time that occurred here could, in some circumstances, inform whether there was a reasonable excuse. Nevertheless, at least by the time of the third interview with the accused on 28 November 2016 then, subject to one matter, at least it should have been apparent to the investigating police that the alleged denial to Mr Powell, that the accused had borrowed a van, could be treated as an “admission” such that the provision was engaged.

20. The one matter that has caused me some doubt is whether the police were attuned to this possibility because they had received what appeared to them to be a cogent confession, such that they should have queried whether every contradictory statement over the course of the years needed to be adopted by the accused. Nevertheless, the possibility someone may recant their confession is something that experienced detectives can be taken to be aware of in the course of investigating a serious crime.

21. As for the decision in Nicholls, that concerns similar, but not identical, provisions in the criminal code of Western Australia. Those legislative provisions included exceptions to the statutory rule excluding off‑camera admissions. These exceptions operated not just in circumstances where there was a reasonable excuse for the videotaping having not occurred, but also where there are “exceptional circumstances, in the interests of justice” that might “justify the admission of the evidence” (see Nicholls at [155], footnote 139). There is no such provision here.

22. Further, the Crown Prosecutor in his written submissions emphasised the passage from the judgment of McHugh J in Nicholls at [108], in which his Honour described the circumstances of that case as involving the interviewing police officers “encouraging the making of off‑camera admissions, despite the presence of recording equipment, and then failing to refer to the admissions when the recording resumes", as undermining the policy of the legislation.

23. It can be readily accepted that any failings, and I hesitate to use that word, of Detectives McKay and Hayman, do not fall anywhere close to that description by McHugh J. However, two matters should be noted. First, [108] of the judgment of McHugh J in Nicholls is his Honour's explanation for why, even if the section excluding the interview was not engaged, nevertheless, as a matter of discretion, the conduct of the police officers warranted its exclusion. It has no relevance to this case.

24. Second, no part of s 281 is concerned with attributing fault in any pejorative sense to any particular police officer as part of the inquiry as to whether a particular admission should be excluded or rejected. Instead, the section is to be applied to its terms, specifically an unrecorded alleged admission made to a police officer during the course of official questioning.

25. In the end result in the circumstances of this case, I am not satisfied that the prosecution has established that there was a reasonable excuse as to why a tape recording seeking an interview with the accused about the alleged making and terms of the admission noted by Detective Powell could not be made. It follows that under s 281(2) that evidence will be rejected.

Other Matters

26. One other aspect of Mr Powell's evidence that arose during argument should be noted. As stated in Tarantino(No 4), I am currently in the midst of a voir dire hearing concerning whether or not the admissions made by the accused to the police in November 2016 should be excluded. In the event that they are not excluded, I understand one part of the accused's defence at trial will be to seek to persuade the jury that little or no weight should be attached to his admissions, because, amongst other matters, during those interviews the accused relayed information about Ms Diec's disappearance that had been passed to him by others, including Mr Powell during the interview in July 1999.

27. Ms Rigg accepted that in those circumstances, it would be open to the Crown to, at least, elicit evidence from Mr Powell as to what he, that is Mr Powell, communicated to the accused during that interview. It will be a matter for the Crown as to the form in which it wishes to adduce any such evidence if it chooses to do that.

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Decision last updated: 28 November 2019