R v Tarantino (No 7)

[2019] NSWSC 1178

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tarantino (No 7) [2019] NSWSC 1178
Hearing dates:	4 September 2019
Date of orders:	04 September 2019
Decision date:	04 September 2019
Jurisdiction:	Common Law - Criminal
Before:	Beech-Jones J
Decision:	Those parts of the statements of Plain Clothes Senior Constable Brooks and Senior Constable Wang described at [10] and [12] are rejected.
Catchwords:	EVIDENCE – CRIMINAL LAW – admissions made to police – unrecorded - s 281 Criminal Procedure Act 1986 – whether made by an accused at a time when could reasonably have been suspected of having committed an offence.
Legislation Cited:	Evidence Act 1995 Criminal Procedure Act 1986
Cases Cited:	R v Tarantino (No 6) [2019] NSWSC 1174
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Publication restriction:	Not to be published prior to the conclusion of the proceedings at first instance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 reasons delivered 5 September 2019)

1. On 30 August 2019 I published a ruling in respect of objections taken on behalf of the accused to evidence of a number of admissions said to have been made by him on 20, 23 and 28 November 2016. I overruled objections taken on behalf of the accused to that evidence made under ss 84, 85 and 90 of the Evidence Act 1995. The evidence of those admissions included a statement of Plain Clothes Senior Constable Brooks dated 25 November 2016 and a statement of Senior Constable Yingbo Wang dated 21 November 2016. At the time of that ruling I indicated that the admission of the evidence set out in those statements was subject to further argument concerning the application of s 281 of the Criminal Procedure Act. At the time of the ruling I also indicated that reasons would be published at a later time. At the time of giving this ex-tempore judgment those reasons have not yet been published, but they will be shortly (R v Tarantino (No 6) [2019] NSWSC 1174 (“Tarantino (No 6)”). In anticipation of that occurring there will be some cross-reference in this judgment to those reasons.

Background

2. Although the full details of the evidence concerning the admissions said to have been made by Mr Tarantino is set out in Tarantino (No 6), it is appropriate to state part of that chronology. By reference to certain surveillance material it is known that, on or around 2.55pm on 20 November 2016, Mr Tarantino telephoned the Sydney Police Station and spoke to a Constable Mungovan. Amongst other matters, he told Constable Mungovan that he wanted to "make a confession for a murder". Constable Mungovan directed Mr Tarantino to attend at the Surry Hills Police Station. Shortly thereafter, Mr Tarantino was recorded speaking to his brothers.

3. According to a statement of a Constable Barnes, who was on attendance at the front counter at Surry Hills Police Station, Mr Tarantino attended there at around 3.40pm on 20 November 2016. Amongst other matters, Constable Barnes records Mr Tarantino as having stated, "I need to speak to someone. I need to hand myself in for a homicide. It's all been building up in me and it's too much". Constable Barnes' statement records that he then administered a warning and proceeded to search Mr Tarantino. He found a knife in his bag. Mr Tarantino was arrested for possession of the knife.

4. There was subsequent discussion about Mr Tarantino's psychological issues, including his various fears and anxieties. Constable Barnes referred the matter to detectives.

5. At around 4.20pm, Plain Clothes Senior Constable Brooks and Detective Senior Constable Wang approached Mr Tarantino. He was sitting in the dock at the police station. On the voir dire that led to the judgment in Tarantino (No 6) statements from each of them were tendered. Each of those statements constitutes evidence of admissions said to have been made by Mr Tarantino. Those statements are again before me on this application. As noted in Tarantino (No 6), the statements were signed some days apart. They have their differences, but overall in substance they record or contain evidence of similar admissions.

6. In her statement, Senior Constable Brooks stated that she asked Mr Tarantino about the murder he "wanted to talk to us about". Mr Tarantino stated that he wanted the discussion recorded, that he had already told his family and that he was expecting to “go in”. Senior Constable Brooks stated that she then said:

“That's okay. I just need you to tell me what's going on. I don't know anything about what you want to tell us. You told the officer at the front of the station you want to report a murder.”

7. Senior Constable Brooks records Mr Tarantino as having stated, "It happened about 16 years ago. I am sure you know, I'm sure you think I'm a piece of shit". Senior Constable Brooks' statement records that Mr Tarantino was shaking and sweating, rubbing his forehead and glaring at the table.

8. Senior Constable Brooks’ statement notes that she then said to Mr Tarantino, "I just need you to tell me what's going on," with Mr Tarantino stating:

“It was 16 years ago. I just needed the money. I was in a bad way. I need this on tape. I can't be taken out the back door like last time. I need to go on tape because they were threatening to kill my parents, brother and girlfriend.”

9. The balance of Senior Constable Brooks' statement involves her seeking to ascertain information from Mr Tarantino using “open” questions. It is self‑evident from those questions and answers that Senior Constable Brooks herself knew none of the details about Ms Diec or her disappearance. At one point, Mr Tarantino identifies Ms Diec as the victim. He is asked how old Ms Diec was. He replies, "I don't know," but describes her as a "school girl". He then provided an estimate of about "10 to 12 years old," and stated that she was in “school uniform”.

10. At one point, Senior Constable Brooks reorientates Mr Tarantino back to the topic of Ms Diec. She asks, "Okay, just come back to Quanne. How did you kill her?" The statement records the accused as having stated, "I strangled her". Thereafter Mr Tarantino is said to have provided various details about collecting Ms Diec in Granville and taking her to her father's house, before panicking and killing her.

11. As noted, Detective Senior Constable Wang's statement is not identical to that of Senior Constable Brooks. Thus Detective Senior Constable Wang does not record Mr Tarantino as having requested at the outset of the conversation that it be recorded. He noted that Senior Constable Brooks had asked Mr Tarantino if he wanted "a private conversation" and that they went to an interview room. Senior Constable Wang records Senior Constable Brooks as having asked him, "Vinzent, what do you want to tell us?", and Mr Tarantino as having replied with words similar to, "I want to report a homicide happened 16 years ago. I am a grub. I abducted a kid 16 years ago. I was in a bad way".

12. Senior Constable Wang then records that Mr Tarantino became emotional. At some point, Senior Constable Wang left to obtain coffee and then returned. He says upon his return Mr Tarantino nominated the person he killed as having the name “Quanne Diec”, and stated that it was a Vietnamese name. Thereafter Senior Constable Wang records Senior Constable Brooks asking various questions and receiving answers broadly similar to those that I have identified above, including that Mr Tarantino said he “strangled” Ms Diec, that he found her at Granville and that he had taken her to his father's house.

13. After that part of the conversation Senior Constable Wang records that he made an internet search on the name Quanne Diec, and determined that she was of 12 years of age when she went missing in July 1998. Detective Senior Constable Wang states that he returned Mr Tarantino to the dock area and had a conversation with the custody manager, Detective Sergeant Plumridge. Senior Constable Wang states that he contacted Detective Mackay, as the officer-in-charge of the investigation into her disappearance.

The Objection

14. On behalf of the accused, objection is taken to some parts of these statements, by reference to s 281 of the Criminal Procedure Act 1986, which 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.

15. The essence of the objection is that s 281 was engaged by the discussion between Senior Constable Brooks and Mr Tarantino, beginning at around 4.20pm on 20 November 2016. It is further contended that the various admissions to which objection is taken are not admissible unless there is available to the Court a tape recording made by an investigating official of the interview in the course of which the admissions were made, or otherwise there was a reasonable excuse as to why such a tape recording could not be made (s 281(2)(a) and (b)).

16. Two matters should be noted. First, on the voir dire no issue was taken that there was no such recording, nor was there any attempt by the Crown to establish a reasonable excuse as to why a tape recording could not be made. Instead, the scope of the dispute concerned the application of s 281(1) to the discussion that occurred between Mr Tarantino and Senior Constable Brooks in the presence of Senior Constable Wang. It was also not disputed by the Crown that that discussion or questioning answered s 281(1)(b), that is, that the admissions were made in the course of “official questioning”. Instead, the focus of the Crown’s submission was that s 281(1)(a) was not engaged.

17. Second, objection was only taken to parts of the statements of the two detectives (see [6] to [7], [10] and [12] above), even though if the objection as argued was upheld it would be open to the accused to object to the entirety of the admissions that are contained in the two statements. This no doubt reflects a considered forensic decision made by Senior Counsel for the accused. It would also follow that if the objection to parts of the statements is upheld it would be a matter for the Crown Prosecutor to determine which of the remaining parts of the questioning and conversation it would seek to adduce.

Decision

18. The essence of the Crown’s submission is that until the two detectives were able to ascertain objectively that there was a basis to believe that there was in fact a Ms Diec, that she had disappeared and that she had been murdered, then there was no basis upon which it could be said that they could “reasonably have … suspected” Mr Tarantino as having committed an indictable offence. In short, I do not accept that contention. The phrase, "could reasonably have been suspected by an investigating official of having committed an offence" does not establish a particularly high standard. It does not require the relevant officer to have formed a view that an offence has definitely been committed. It does not require the officer to have any particular level of knowledge about the offence, other than that provided by the suspect of the offence as having been committed. Instead, it simply requires the existence of a reasonable possibility of the relevant suspicion (“could”).

19. At the time the two detectives spoke to Mr Tarantino they either were, or could be taken to have been, aware that Mr Tarantino had told Constable Barnes that he wanted to confess to a murder. Within a very short period of the discussion with Mr Tarantino it was apparent that he was in possession of various details concerning the killing, including the alleged name of the deceased, her age, the time period of when it occurred and the location. Leaving aside the opening statement that was made to Detective Brooks, (see [6] to [7] above), I am more than satisfied that by the time it came to the later passages to which objection is taken (ie, [10] and [12] above), that the accused person "could reasonably have been suspected by an investigating official of having committed an offence, namely murder". It is to be remembered that s 281 has been enacted against the long background over disputed admissions. I see no reason why a narrow view would be taken of that provision in the present case.

20. The more difficult issue concerns the opening statement that is recorded by Detective Senior Constable Brooks in her statement, namely, where she asked, "You told the officer at the front of the station you want to report a murder," and the accused said, "It happened about 16 years ago. I am sure, you know, I am sure you think I'm a piece of shit" (see [6] to [7] above). As best as can be ascertained, the only information available to Senior Constable Brooks at that time was, it seems, what had been told to Constable Barnes, who had himself administered a warning. Given the terms in which the conversation commenced and that Senior Constable Brooks only had the simple bare detail that Mr Tarantino had apparently attended at the front desk and made reference to confessing to a murder, I am not satisfied that at that time the position was that Mr Tarantino "could reasonably have been suspected by an investigating official of having committed an offence". At that point no detail of any kind had been provided, including the identity of any possible deceased person, the time of the killing, or the person’s possible location. The bare assertion about wishing to confess to a “homicide” to Constable Barnes was, in my view, not sufficient to engage the section.

21. In light of those conclusions, it follows that that part of Senior Constable Brooks' statement (ie, [6] to [7] above) can be adduced in evidence but the balance of the objected to portions are rejected.

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Decision last updated: 28 November 2019