R v Vinayagamoorthy
[2009] VSC 275
•11 February 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE CRIMINAL DIVISION |
No. 1628 of 2007
THE QUEEN
v
ARURAN VINAYAGAMOORTHY
SIVARAJAH YATHAVAN
ARUMUGAM RAJEEVAN
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| JUDGE: | COGHLAN J | ||
| WHERE HELD: | Melbourne | ||
| DATE OF PRELIMINARY | 11 February 2009 | ||
| RULING: | |||
| CASE MAY BE CITED AS: | R v Vinayagamoorthy & Ors | ||
| MEDIUM NEUTRAL CITATION: |
|
RULING NO. 1
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M.E. Dean S.C. with | Commonwealth Director of |
| Mr K. Armstrong and | Public Prosecutions | |
| Mr S. Johns | ||
| For the Accused | Mr B.E. Walters S.C. with | Robert Stary & Associates |
| Vinayagamoorthy | Ms P. Murphy | |
| For the Accused Yathavan | Mr M. O’Connell S.C. | |
| For the Accused Rajeevan | Mr P. Boulten S.C and Ms. F. Todd | |
| HIS HONOUR: |
On 23 November 2005, the Australian Federal Police (‘AFP’) attended at the home of the accused, Sivarajah Yathavan. The purpose of that visit was both to search the premises and to interview Mr Yathavan. Federal Agent Alex Nicolson was the officer principally responsible for conducting any interviews with Mr Yathavan. In the event, there are, in reality, two interviews. The first is what has been called a field interview and the second a more formal interview which took place at AFP headquarters in Latrobe Street, Melbourne later the same morning.
The admissibility of both interviews was challenged on the voir dire. It was submitted that it would be unfair to admit the two interviews into evidence in the trial. Both interviews were tape recorded and the second interview was also recorded on video tape. The tape of the first interview and the video tape of the second interview were played on the voir dire.
Although many of the facts are not in dispute, there remain some matters in contention. In the final analysis, it will be important to determine whether or not Mr Yathavan was in custody (i.e. under arrest) or a protected suspect as defined in s 23B(2) of the Crimes Act 1914 (Cth) (‘the Act’).
It was the position of the interviewing police officer that Mr Yathavan was in their presence voluntarily and was never considered in custody nor a protected suspect within the relevant section.
The statutory scheme governing the treatment of protected suspects and persons under arrest is contained in Part 1C of the Act. The heading of Part 1C is ‘Investigation of Commonwealth offences’. Under the heading ‘Division 1 – Introduction’ appears:
s 23 Outline of this Part
(1) This Part:
(a) provides for the detention of people arrested for Commonwealth
offences (see Division 2); and
(b) imposes obligations on investigating officials in relation to:
(i) people arrested for Commonwealth offences; and
(ii) certain other people who are being investigated for
Commonwealth offences;
(see Division 3).
(2) To avoid doubt, this Part does not confer any power to arrest a person.
(3) To avoid doubt, only a person arrested for a Commonwealth offence may
be detained under this Part.
The obligations imposed by s 23(b)(ii) in relation to ‘certain’ other people who are being investigated for a Commonwealth offence is a reference to those who are to be considered ‘protected suspects’. That term is defined in s 23B of the Act as follows:
(2) A person is a protected suspect if:
(a) the person is in the company of an investigating official for the purpose of
being questioned about a Commonwealth offence; and
(b) the person has not been arrested for the offence; and
(c) one or more of the following applies in relation to the person:
(i) the official believes that there is sufficient evidence to establish that the
person has committed the offence;
(ii) the official would not allow the person to leave if the person wished to
do so;
(iii) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so; and
…
Sub-paragraphs (d) and (e) and subsections (3), (4) and (5) are not relevant for present purposes.
It was not suggested by Mr O’Connell of Senior Counsel who appeared for Mr Yathavan that he was actually under arrest. He contended that as a ‘protected suspect’, Mr Yathavan was entitled to the benefit of certain obligations imposed upon Mr Nicolson.
The first obligation is to caution persons who are under arrest or protected suspects as set out in s 23F(1):
Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.
Subsections (2) and (3) are not relevant.
It is convenient to deal with the evidence on that subject and the question of whether Mr Yathavan was a protected suspect.
The witnesses Federal Agents Nicolson, Taylor and Hopkins were called on the voir dire. On the morning of 23 November 2005, Federal Agent Hopkins was the first person to speak to Mr Yathavan in any relevant sense. Agent Hopkins bore responsibility for executing the second warrant at 37 Hartland Road, Vermont South.
Agent Hopkins was carrying a recording device and the tape records that upon entering the premises he gave Mr and Mrs Yathavan a copy of the warrant and explained that his concerns were with the execution of the search warrant. He did go on to say:
Okay. At this stage I am not going to ask you questions in relation to the actual offence on there, however, I will caution you anyway that you do not have to say or do anything unless you wish to do so as anything you say or do may be recorded and later given in evidence. Do you understand that?
Mr Yathavan replied “Yes”.
That conversation took place shortly after 7.40 a.m. Federal Agent Nicolson was in the vicinity but has no actual recollection of Agent Hopkins delivering that caution. His recollection is that Mr Yathavan “started to say stuff, so I just thought I would caution him, initially, I didn’t have my recording device activated at that time …”. The significance of that is that at 7.56 a.m. Agent Nicolson did have a conversation with Mr Yathavan which was tape recorded.
That conversation is referred to as the ‘field interview’.
At the beginning of the interview, Agent Nicolson takes part in the following exchange with Mr Yathavan:
Q1: Do you agree that for the purposes of the tape that we’re just here doing a search warrant at your premises and that that warrant was explained to you? A: Yep. Q2: Okay. Before I ask you any further questions or anybody asks you any further questions I just want to reiterate to you that you do not have to say or do anything but anything you do say or do will be recorded as we go along at various times. A: Yeah, yeah. Q3: Do you understand that? A: Yes. Q4: You also, for the purpose of any questions that are asked to you, you also have the right to communicate with a legal practitioner or attempt to communicate with a legal practitioner and have a – or arrange or attempt to arrange to have a legal practitioner present during questioning. Do you understand that?
A: Okay. Q5:
So at if any time you wish to speak to a lawyer or you want to contact a lawyer for any questions we ask you’re entitled to do so. Do you understand?
A: … (indistinct) … (laughter) Q6: But you understand you have that right? A: Yes. Q7:
You also have the right to talk to a friend or relative but, given that your wife’s here she knows where, she knows where you are and obviously if you – I might ask you to come back to the police station later to answer some more questions, depending on how the warrant goes. So you’ll have the right, obviously, to let people know where you are. Do you understand that?
A: Okay. Q8: You are an Australian citizen? A: Yes. Q9:
Yes. Okay. And for the purpose, so far the purpose of your rights, too, anything that we do and any questions that we ask you will be tape recorded in relation to the offences.
A: Yeah. Q10: And as it was explained to you we’re here on the basis of an allegation that you are a member of the Liberation Tigers of Tamil Eelam which is ah, we allege is a terrorist organisation.
A: Okay. Q11: And do you understand that> What I’ve said to you, does that make
sense?
A: Not really (laughter). Yeah, yeah, I see. Q12: As long as you understand your rights. Do you understand the rights that I’ve explained to you?
A: Yes. Q13: Okay. Well what I’ll do - - -
A:
What I’m saying is like I’m not a member or anything but like I told you before I’m just running a newspaper and it’s – uh (laughter) … (indistinct) … but if you have anything to like, that’s up to you (laughter).
Q14: Well, we’ll be continuing our investigation - - -
A: Yeah, you can, sure. Q15: And the purposes – it was explained to you the purpose today is to do the search warrant here.
A: Yeah, you do that. Q16: And we’ve got certain things and certain procedures that we do and we’ll be searching the premises for evidence of those things and um what we do past there we’ll – obviously we’ll keep you informed of the process. All right. Like I said, obviously nothing is proven yet, we’re just going through the process.
A: Yep, yep, yep. Q17: So, I might, at this point, pause the tape. Ah the time is now seven fifty
nine.
The interview ceased at 7.59 a.m. and recommenced at 8.09 a.m. Agent Nicolson then said: “I’ll just remind you that the rights I gave you earlier still exist”, and Mr Yathavan replied “Yeah”.
Mr Yathavan was then asked another 61 questions which he answered.
At 8.20 a.m. the following exchange occurred:
Nicolson: Okay. So. I’ve just turned the tape back on and the time is now 8.29.
Q80: Do you agree I just asked you previously if you were happy to come back and participate in an interview with us?
A: Yes, of course, yes. Q81:
Yes. And as far as I am concerned I’m not going to ask you any more questions here and we will wait until we get back to the police headquarters. Are you happy with that?
A: Yes. Q82: Okay.
The interview was then suspended for six minutes but continued from 8.35 a.m. until 9.14 a.m. A further 181 questions were asked.
A short version of the caution was given in the sense that Mr Yathavan was told: “… the caution that I gave you earlier and your rights still applies. You are aware of those”.
Federal Agent Taylor suggested: “Do you need to say the full caution?”, which led Agent Nicolson to say: “And just to remind you that you do not have to say or do anything but anything that you do say or do is recorded. You understand that don’t you?”. There was no audible reply to that question.
As I have already indicated, that ‘field interview’ was completed at 9.14 a.m.
The search of the premises continued until about 11.45 a.m. At that time there was a further conversation between Federal Agent Nicolson and Mr Yathavan.
Nicolson says in his statement: “At that time I had a short conversation with Mr Yathavan. As a result of that conversation, I understood Mr Yathavan was aware that he was not under arrest at the time he was departing his premises”.
In general, the conversations were not challenged in cross-examination. Issue was joined regarding whether or not Federal Agent Nicolson had given the complete caution prior to the commencement of the taped interview. It was not put to him in direct terms that he had not given the full caution. I am not sure much turns on that because the full caution had been given by Federal Agent Hopkins and the giving of that caution had been tape recorded.
At about 12.45 p.m., Federal Agent Nicolson commenced a tape recorded interview with Mr Yathavan in the presence of Federal Agent Taylor.
At the commencement of the interview, the following exchange occurs:
Q3:
And as I said, you will be provided with the opportunity to look at the video should you choose to do so. Mr Yathavan, Federal Agent Taylor and I are making inquiries into the allegation that you are a member of a terrorist organisation, namely Liberation Tigers of Tamil Eelam and I intend to ask you further questions in relation to that but before I do I must caution you that you do not have to say or do anything that anything you say or do will be recorded as I’ve explained and that that recording may be used in evidence. Do you understand that?
A: Yes. Q4: Can you just briefly just for the purpose of the tape just explain to me
what you understand that to mean.A: Like, um, the question that you ask I don’t have to answer every
question and, um, I can choose not to answer the questions.Q5: Yes. And that right is enduring. A: Yes. Q6: You can exercise that at any time. A: Okay.
And later:
Q34: Do you also agree that we had a conversation earlier today that was
tape recorded?A: Yeah. Q35:
Do you agree that you were provided – you were also advised of your – your rights and were cautioned before we commenced that conversation?
A: Conversation – yes. Q36:
Okay. What I’m going to do now is I’m just going to play some of – the first part of the conversation just so that you can hear your voice and - - -
A: M’hm. Q37: - - - and – and me talking and I just – when you – when you listen to it
I’m going to ask you just some further questions.
Then:
Q39:
Okay. Before I ask you any further questions or anybody asks you any further questions I just want to reiterate to you that you do not have to say or do anything but anything you do say or do will be recorded as we go along at various times. Do you understand that?
A: Yes.
Then:
Q45: Yes. Okay. And for the purpose of – so for the purpose of – of your rights too, anything that we do, any – any – any questions that we ask you will be taped recorded in relation to – to the – the offences. A: All right. Yeah. Q46: And as it was explained to you, we’re here on the – basically on the allegation that you are a member of the Liberation Tigers of Tamil Eelam which is a – we allege is a terrorist organisation. Do you understand that?
A: …(indistinct)… Q47: What I’ve said to you, does that make sense? A: Not really. …(indistinct)… Q48: As long as you understand your rights. Do you – do you understand
the rights that I have explained to you?A: Yes.
Then later:
Q54:
Okay. Now I’m just going to – for the purpose of the interview I’ll just restate the allegation that – that we’re investigating – that we believe that you are a member of the terrorist organisation the Liberation Tigers of Tamil Eelam, or the LTTE, or Tamil Tigers. Do you understand that?
A: But I deny that totally. I’m – I’m not a member or anything. But, um,
yeah.
Taylor:
Q55: What constitutes a member? A:
A member is like, um, you have to, you know, like, ah, serve the army or serve the LTTE and you have to have the training for six months and, ah, like, you know, it’s a fighting force there. But, um, oh, and that, um, they give you a identity card like a – what do you call it? Like people who wear like an identification card.
Q56: Yeah.
A: Like you are a member of the LTTE and all that sort of thing. Um, and other than that, um, they all carry their sign at, um, capsules and that – that’s what I think the LTTE members are. But – and also like you have to obey their leader’s rule and this and that and you have to, you know, that sort of thing. But since we are living in Australia we don’t – we are not getting in, ah, getting any instructions from the leader who is there in – in Sri Lanka. But so I’m not the member of LTEE, no.
Then towards the end of the interview:
Q94:
Well I don’t have to many more questions at the moment. What I can tell you is that the – there is an ongoing investigation. That there will have to be an analysis done on some of the computers and some of the other material that we seized today on the search warrant.
A: Yes. Yeah. Q95:
And there are some other items that need to be fully analysed and once that happens I would – I would seek to probably interview you again and put that material to you to give you the opportunity to - - -
A: Explain to you. Q96: - - - comment on it. A: Yeah. Q97: Do you understand what – that? A: Yeah. Q98: And you can obviously change your mind as the time comes - - - A: No. Q99: - - - but would you have – would you have any objection to speaking to
us again?A:
No, that’s – I told you this morning, you know, like we had the impression that we are not banned organisation here so, you know, like TCC is not a banned organisation. So that’s why I was working for TCC. If you are saying TCC is a banned organisation here in, um, Australia then I will simply stop and do my business maybe more – more what I am - what I am doing now and will make more money.
A copy of the search warrant which was executed was tendered in evidence. The importance of that document is that it sets out in some detail the matters which the Australian Federal Police were investigating and the classes of material which might be found in the premises.
The major issue to be decided in this aspect of the case is whether or not Mr Yathavan was a protected suspect within the meaning of s 23B(2). There can be no doubt that in relation to that section Mr Yathavan was a person ‘in the company of an investigating official for the purpose of being questioned about a Commonwealth offence’ within the meaning of s 23B(2)(a) and s 23B(6), which his in the following terms:
In this Part, a reference to questioning a person:
(a) is a reference to questioning the person, or carrying out an investigation
(in which the person participates), to investigate the involvement (if any) of
the person in any Commonwealth offence (including an offence for which theperson is not under arrest); and
(b) does not include a reference to carrying out a forensic procedure on the
person under Part ID.Sub-paragraph (b) does not seem to have application. It has not been suggested that Mr Yathavan was ever actually under arrest. Sub-paragraph (a) is in contention. The three propositions set out in that sub-paragraph operate either individually or in combination.
The evidence with respect to each proposition is scant. That evidence which is available tends to show the investigating officials had not formed a view there was sufficient evidence to establish that Mr Yathavan had committed an offence. Further, it was possible that Federal Agent Nicolson would not have allowed Mr Yathavan to leave if he wished to do so.
The second question was never put to the test insofar as Mr Yathavan did not seek to leave the ‘presence’ of Federal Agent Nicolson during either interview. There is some indication of interference with free movement, in that during the ‘field interview’ the following exchange occurred:
Q116:
What time did this – when did you – just for the purpose the tape the phone is ringing in the background. I’ll ask that you don’t answer the phone. Can you tell me – I’d prefer that you didn’t answer it, sorry, Mrs Yathavan. Can you tell me what the date when you travelled?
A: Um – October I can say but I can’t name – not knowing the dates
exactly, October two thousand and three.
Since both Mr and Mrs Yathavan responded to that reasonably polite request, it is not known what Agent Nicolson’s response would have been if either of them had insisted on answering the phone. In evidence he made it clear that he regarded external communication during the search as undesirable to say the least.
That is not the end of the matter. Sub-paragraph (2)(c)(iii) has to be addressed:
The official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.
That sub-paragraph will need to be addressed in the different circumstances as they relate to the two interviews.
The test set out in s 23B(2)(c)(iii) is objective. It is not clear to me what the effect of the sub-paragraph is in the absence of any belief by the person involved or at least in the absence of any evidence as to the belief. The difficulty is that, irrespective of the objective circumstances, unless a person actually held such a belief, the sub- paragraph would be of no effect.
When an interview is conducted in the circumstances of the ‘field interview’ in the present case, the application of the sub-paragraph to a person is conceptually quite difficult. Mr Yathavan was at his own home in company with his pregnant wife. A large number of Federal Agents and perhaps other police officers were present. The purpose of the presence of the officers was to execute a search warrant. The very first thing which the officers who attended did was to explain the search warrant. Mr Yathavan appeared to be co-operative with Federal Agent Hopkins and agreed to the search.
Federal Agent Hopkins’ conversation with Mr Yathavan was recorded. For present purposes, the following passage is of importance.
Q18: Okay. That is no problem. What I will do know is I will get the members of the team to start searching. What we would like to do is to have someone present during the search. Obviously, you are pregnant so we don’t expect you to come round with us, but it is Mr YATHAVAN, is it, sorry? A: Yes. Q19: If Mr YATHAVAN can assist us by just being present whilst we conduct a search. In particular, if you can have a read of the first condition in that search warrant and help us to tell us where any of those things are. Again, I just say at this stage, you don’t have to. It is your choice.
A: No, no, that’s …..inaudible….. Q20: At this stage for the tape I will just say that you have been very co- operative and I appreciate that.
A: Yeah. Q21: But you don’t have to do anything. Do you understand that? A: No problem. Yes Okay. No problem. Okay, then, Dan, is there anything you have got to have?
That recorded conversation was completed at 7.45 a.m.
As noted earlier, the field interview commenced at 7.56 a.m. and after several interruptions concluded at 9.14 a.m., that is, one hour and 18 minutes later.
The question of Mr Yathavan leaving the premises did not arise because he was still there awaiting the completion of the search warrant. In fact, there were probably four search warrants; one for the premises and three for the vehicles at the premises. Mrs Yathavan was present for the search of two vehicles at 8.15 a.m. and about 9.00 a.m. Mr Yathavan was present for the third at about 9.20 a.m. The search of the premises concluded at 11.40 a.m.
It should be noted that both Mr and Mrs Yathavan were very co-operative with the investigators.
It seems to follow, although it is not entirely clear on the evidence, that the search of the premises was deferred until the field interview was completed. Since Mr Yathavan had already agreed to remain for the search (he could hardly do otherwise), the question of his leaving the premises did not arise.
I am satisfied that objectively, the circumstances were each that there ‘were reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so’. I am also prepared to draw the inference that Mr Yathavan did not know that he was free to leave, even in the absence of evidence to that effect.
Prior to the field interview, Mr Yathavan was not told that he was free to leave. There was, in any event, something odd about that since he was in his own home awaiting the issue of a search warrant.
In my view, Mr Yathavan was a ‘protected suspect’ for the purpose of the field interview. I accept, however, that he freely took part in the interview and in one sense he was quite keen to put his point of view.
What follows from that conclusion is that Mr Yathavan was entitled to the rights conferred under Division 3 Part IC of the Act. Section 23F(1), under the heading ‘Cautioning persons who are under arrest or protected suspects’ reads as follows:
(1) Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.
The form of caution is set out. The recorded caution given by Federal Agent Hopkins is in accordance with the section.
The caution recorded by Federal Agent Nicolson on more than one occasion is deficient. The words are ‘but that anything that the person does say or do may be used in evidence’. The words ‘will be recorded’ were inserted instead.
It is Federal Agent Nicolson’s evidence that he did give the full caution shortly prior to the interview and it was not recorded. I accept he is genuine in that belief. He does gain some support for that position by the use of the word “reiterate” in question two of the field interview. Federal Agent Nicolson is certain that he did give the full caution. If, in that question, he was referring to what he had done (as against Federal Agent Hopkins), I would not share his confidence because on at least one other occasion in the field interview (question 84) he again used the incomplete caution, even though it was in the context of Federal Agent Taylor asking him ‘Do you need to say the full caution?’.
It is not, however, Federal Agent Nicolson’s version of the evidence that the word ‘reiterate’ was a reference to the caution given by Federal Agent Hopkins. I say that because the first part of question two is framed as follows:
Okay. Before I ask you any further questions or anybody asks you any further questions …
What is clear is that Mr Yathavan had, only about 11 minutes prior to the commencement of the field interview, to have the full caution administered by Federal Agent Hopkins.
Whatever the position might be regarding Federal Agent Nicolson, if he did give the full caution before the interview, it was not recorded in accordance with s 23U. It was undoubtedly practical to have done so.
Unless the ‘Hopkins caution’ can be imported into the interview, there is a breach of s 23F. It was submitted by Mr O’Connell SC on behalf of Mr Yathavan that as a result it was unfair for the record of interview to be used against Mr Yathavan.
I had indicated in argument that it is likely because of the operation of s 23B(6)(a) that the interview with Federal Agent Nicolson has to be taken as standing in its own right.
Dealing with that as part of the case, there has been a breach of s 23F.
It is perhaps important to note, however, that s 23G, the communication of the right to communicate with a friend or legal representative, was complied with.
At question 18 in the interview, Mr Yathavan was reminded of his rights. The incomplete caution was repeated at question 84.
Towards the end of the interview, the following exchange occurred:
Q265: There are a couple more allegations, a couple more things I want to put to you and we just need to – because there are a couple of associations and things, but would you still be prepared – I think they’re getting pretty close to finishing – would you be prepared to come back and just to have another, just to have another talk to us on tape back at the police headquarters?
A: Yeah, that’s not problem. Yeah.
In his statement, Federal Agent Nicolson said:
About 11.45 am, in company with Federal Agent TAYLOR and Mr YATHAVAN, I departed the premises located at 37 Hartland Road, Vermont South. At that time I had a short conversation with Mr YATHAVAN. As a result of that conversation, I understood that Mr YATHAVAN was aware that he was not under arrest at [sic] that he was departing his premises to accompany me back to AFP Headquarters of his own free will.
That evidence was not challenged and Mr Yathavan did not give evidence on the voir dire.
In my view, whatever the position that had been obtained at Mr Yathavan’s home, he did go back to AFP headquarters willingly and he had then ceased to be a protected suspect. It would follow that he did not have the same rights at police headquarters. He was given the full caution in any event. All the relevant sections were complied with and that interview is admissible.
There is a clear distinction on the facts between this case and Pollard v R[1]. In that case, Pollard was under arrest from the outset. When Pollard was given no caution at the Frankston Police Station, that absence of caution infected all that occurred afterwards. When he was eventually given the proper caution, he was given no time to consider his rights or to exercise them.
[1] (1992) 176 CLR 177.
The confession obtained in breach of a statutory duty might be excluded if unfair to admit it by reason of that breach[2] or alternatively on the grounds of public policy[3]. The exercise of either discretion would depend upon the extent of the breach. I am satisfied that the breach in the present circumstances is not such as to render the admission of the field interview unfair. It is important to note that even though some of the words were missing from the caution on several occasions, it was never suggested by Mr Yathavan that the use of the additional words ‘used in evidence’: would have influenced his decision as to whether or not he should answer questions and continue to participate in the interview. It is clear from much of the material that he did understand that he did not have to answer the questions which were put to him.
[2] Ibid at 234.
[3] Cleland v R (1982) 151 CLR 1.
In R v Thomas, the Court (Maxwell P, Buchanan and Vincent JJA), when speaking of the fairness discretion, said at paragraph 100:
Although there has over the years been a degree of uncertainty concerning the area of operation of this discretion, it appears always to have been accepted that some relationship must exist between the behaviour of those involved in the interrogation, the circumstances under which it is conducted and the state of mind of the confessionalist, such that the presentation of the
resultant evidence would be productive of an unfair trial. [4]
[4] (2006) 163 ACrimR 567, 600.
In this area I am satisfied that it would be appropriate to inform suspects that they may leave at any time. That is not of great significance where it appears uncontested that it had been explained to Mr Yathavan that he was not obliged to go back to AFP headquarters with the Federal Agents. In relation to the second interview, the relevant sections, in particular s 23F and 23G, were complied with.
If I have not already made it clear, I regard the departure in the present case as being relatively minor because of what had preceded it. In those circumstances, I do not accept that there is a public policy basis for excluding the ‘field interview’.
The other consideration is non-compliance with s 23V. Mr Yathavan, although provided with a tape of the second interview, was not provided with a copy of the ‘field interview’ tape in accordance with s 23V(2). It is not all that clear when he was provided with a copy, except to say on any version of it, it was probably years after it was conducted. The interview itself was conducted on 23 November 2005. It is of consequence to understand that Mr Yathavan was not arrested and charged until 1 May 2007. The evidentiary status of the field tape may well not have been considered up until that time.
The admissions made in the ‘field tape’ are admissions of fact which the Crown would seek to use in proof of the offence charged. They are not ‘confessions’ to the actual criminal activity. It is in that context that I believe that Mr Yathavan agreed to be interviewed, that is, he was happy to give his explanation of events.
Section 23V is expressed in difficult terms. Pursuant to s 23V(1), an interview which is not tape recorded is inadmissible unless brought within the exception in s 23V(5). The Act does not make a record of interview (here the field interview) inadmissible merely because s 23V(2) has not been complied with.
Although there is a ‘not practicable to comply’ exception to s 23V(2) in s 23V(6), it does appear to be of application here. Section 23V(5) applies to either non- compliance with s 23V(1) or (2). However, when dealing with s 23V(1), it is to be considered in the face of inadmissibility. That is not the consequence of s 25V(2). There is no material before me as to why the ‘field interview’ tape was not copied and served. I am prepared to assume that there was only one copy of the field interview, unlike the multiple copies of the record of interview.
There are a number of matters which are relevant:
(1) Mr Yathavan knew that the conversation had been recorded. (2) Part of the recording was played back during the second interview. (3) It is not suggested that there are any inaccuracies in the recording. (4) I am satisfied that Mr Yathavan was a willing participant in the field interview and was genuinely wanting to put his point of view and no questions of unreliability arise. (5) the tape had been taken 18 months prior to the arrest and therefore some
substantial time before a decision was made to charge.(6) There is no suggestion of deliberate non-compliance with the provisions of
the Act.(7) I am dealing with the failure to provide the copy of a tape, not a failure to
record.
In all the circumstances, I am satisfied that in the special circumstances of this case it would not be contrary to the interests of justice to admit the tape into evidence and I admit it.
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CERTIFICATE
I certify that this and the 18 preceding pages are a true copy of the reasons for the Preliminary Ruling of Coghlan J of the Supreme Court of Victoria dated 11 February 2009.
DATED this thirtieth day of June 2009.
Associate
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