Re A (a Child)

[2000] NSWSC 627

Reported Decision: [2000] 115 A Crim R 1

New South Wales

Supreme Court

CITATION:	AH-SEE v. HEILPERN & ANOR [2000] NSWSC 627
CURRENT JURISDICTION:	COMMON LAW
FILE NUMBER(S):	SC 10054/00
HEARING DATE(S):	14/06/00
JUDGMENT DATE:	6 July 2000
PARTIES :	Albert Ah-See - Plaintiff David Heilpern - First Defendant Richard Morley - Second Defendant
JUDGMENT OF:	Bryson J at 1

COUNSEL :	S. Odgers - Plaintiff P. Berman - Second Defendant
SOLICITORS:	M. Dennis (s) Western Aboriginal Legal Service S.E. O'Connor (s) for Public Prosecutions First defendant submitting.
CATCHWORDS:	EVIDENCE - Criminal Proceedings - admission in official questioning - accused was asked, in an interview which was not electronically recorded, "Do you wish to participate in a line-up." and answered "No" - Magistrate admitted picture identification evidence after having regard to this q & a when considering objection - Evidence Act subs 115(5) made picture identification evidence inadmissible unless the accused refused to take part in an identification parade - it was contended that the q & a should not have been regarded when ruling on the objection because the q & a were an admission and the conditions for admissibility of evidence of an admission in Crimes Act s 424A (relates to electronic recording) (see now Criminal Procedure Act s 108) had not been complied with - meaning of "admission" in s 424A and significance of definitions of "admission" and "representation" in Evidence Act 1995 - cognate legislation - held - the q & a evidence of refusal were not evidence of an admission within s 424A - Magistrate was correct in having regard to q & a when ruling on objection to picture identification evidence.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 s 424A Crimes Legislation Amendment (Sentencing) Act 1999 Criminal Procedure Act 1986 s 108 Evidence Act 1995 (NSW) s59, s72, s81, s82, s85, s115, s138, Dictionary Evidence (Consequential and Other Provisions) Act 1995 Justices Act 1902 s109 Supreme Court Act 1970 s101
CASES CITED:	Viro v. The Queen (1978) 141 CLR 88 Repatriation Commission v. Vietnam Veterans’ Association [2000] NSWCA 65 Horton (1998) 104A Crim R 306 Hinton (1999) 103A Crim R 142 Esposito (1998) 105A Crim R 27
DECISION:	Appeal dismissed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BRYSON J.

THURSDAY 6 JULY 2000

10054/00 ALBERT AH-SEE v. DAVID HEILPERN and RICHARD MORLEY

JUDGMENT

1 HIS HONOUR: This is an appeal under Pt 5 of the Justices Act 1902. On 24 August 1999 the plaintiff was arrested by police at Wellington and on 25 August he was brought before the Dubbo Children’s Court and charged with an offence under s 97 of the Crimes Act 1900 (which relates to robbery being armed with an offensive weapon). The particulars alleged that on 24 August he robbed a named Commonwealth Bank officer of $1,698 the property of the Bank while armed with a bladed instrument. The plaintiff was born on 30 August 1981. At the time of the alleged offence he was 17 years of age. By the time of the trial he had turned 18 years of age, and that is his age now.
2 The charge was tried before Mr David Heilpern, Children’s Magistrate in the Children’s Court at Wellington on Monday 6 and Tuesday 7 December 1999, when the offence was found proved. On 23 December 1999 the Children’s Court sentenced the plaintiff to a control order consisting of a minimum term of 15 months and an additional term of nine months pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW); the control order dated from 24 August 1999. Mr Heilpern has filed a submitting appearance. The second defendant Mr Morley is a Senior Constable of Police at Wellington and the Informant in the Children’s Court. He filed an appearance in this Court and later the Director of Public Prosecutions took over as second defendant in the proceedings. The plaintiff and the Director of Public Prosecutions were each represented by counsel at the hearing of the appeal. 3 The substantial issue in the trial was whether the plaintiff was identified as the offender. The evidence of identification on which the learned Magistrate acted was given by two bank officers who were present at the time of the offence; they identified the plaintiff as the offender by reference to picture identification evidence, being photographs shown to them by investigating police. The plaintiff challenges the admission in evidence of the picture identification evidence. If their identifications by reference to picture identification evidence should not have been allowed in evidence, it could not be found that the plaintiff was the offender and the conviction must be quashed. 4 The appeal revolves around the admissibility of evidence given by Mr Morley about whether the plaintiff refused to participate in a line-up. The effect of this evidence appears from a passage in para 12 of Mr Morley’s statement dated 20 September 1999; the part of Mr Morley’s evidence based on this statement was not admitted in evidence on the trial of the proceedings but was rejected, but the Magistrate acted on it in a way which shows that it must be taken to have been admitted in evidence for the limited purpose of deciding an objection to the picture identification evidence. The significant passage is as follows:

Attempts to locate relatives for the young person Albert AHSEE failed. About 4.30pm in company with Detective SHARWOOD and ACLO WEST we escorted the young person Albert AHSEE to the interview room in the Detectives Office. I obtained the Young persons details being Albert Keith AHSEE, 3 Simpson Lane Wellington, Date of birth 30/08/81.
I said, “Albert do you agree that you have requested ACLO WEST to be present as none of your relatives can be found.”
He said, “I don’t want them sitting around.”
I said, “Do you agree that you are under 18 and over 16.”
He said, “Yep.”
I said, “Do you agree to ACLO WEST being present whilst I ask some questions.”
He said, “Yeh.”
I said, “Albert I wish to speak with you in relation to an armed holdup at the Commonwealth Bank Nanima Crescent about 10.45am today. You are not obliged to say or do anything as anything you say or do will betaken down and later used in evidence. Do you understand that?”
He said, “Yep.”
I said, “Do you wish to be interviewed in relation to this matter.”
He said, “No, No thanks.”
I said, “Do you wish to participate in a lineup.”
He said, “No.”

5 Section 115 of the Evidence Act 1995 deals with exclusion of evidence of identification by pictures. Subsection 115(1) provides:

115.(1) In this section:
‘picture identification evidence’ means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.

6   The picture identification evidence on which the Children’s Court acted falls within this definition. 7   Subsection 115(5) provides:

(5) Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless:
(a) the defendant refused to take part in an identification parade; or
(b) the defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or
(c) it would not have been reasonable to have held an identification parade that included the defendant.

8   The picture identification evidence was not admissible, in the circumstances of this case, unless for the limited purpose of determining the objection to its admission in evidence there was a finding to the effect of para (a), that is, that the defendant (now the plaintiff) refused to take part in an identification parade. That finding must, of course, itself be based on admissible evidence, whether earlier admitted in evidence in the proceedings generally or admitted in evidence for the limited purpose of ruling on admissibility. In this case Mr Morley’s evidence to that effect had not been earlier admitted; it had been tendered, objected to and rejected. The terms of ruling show that the Magistrate had regard to Mr Morley’s evidence to the effect of the passage in his statement which I have set out; that evidence had been given on an earlier voir dire hearing. 9   The Magistrate did not in terms say that he admitted the material in evidence for the limited purpose of ruling on the objection, but his observations when ruling on submissions by Mr Dennis on behalf of the (now) plaintiff show that in substance he did that. The observations are these:

DENNIS: Well I say 424A covers it straight forward.
BENCH: I don’t think it is that straight forward Mr Dennis because what we are looking at here is exclusion of identification of pictures and the reason that the prosecution is seeking to adduce evidence by picture identification is because the defendant refused to take part in an identification parade. That is fact. The defendant did refuse to participate in a parade. Now as to whether that statement is admissible in terms of my consideration of section 115 seems to me to be reasonably simple. I have already indicated that I am satisfied that the breach under section 13 was either when applying the section 138(3) tests to it should be admitted because of the seriousness of the offence and I see no difference in applying the same test in terms of a combination of section 115 and section 424A. The reason for that is because we are at this stage considering evidence of exclusion of evidence of identification of pictures and I am prepared to accept the evidence of the officer that the reason picture identification was used was because the defendant refused to take part in an identification parade. That is a fact.
DENNIS: No you don’t have that before you. You don’t have that before you unless it is admissible.
BENCH: Well I say that it is admissible as part of the first voir dire that we have accepted as evidence in the second voir dire. It is acceptable in my consideration of section 115 and I find that the evidence is admissible, the photo identification evidence is admissible.

10 The earlier ruling was to the effect that evidence of Mr Morley was not admissible because of the operation of s 13 of the Children (Criminal Proceedings) 1987 which is in these terms:

13 Admissibility of certain statements etc
(1) Any statement, confession, admission or information made or given to a member of the police force by a child who is a party to criminal proceedings shall not be admitted in evidence in those proceedings unless:
(a) there was present at the place where, and throughout the period of
time during which, it was made or given:
(i) a person responsible for the child,
(ii) an adult (other than a member of the police force) who was present with the consent of the person responsible for the child,
(iii) in the case of a child who is of or above the age of 16 years - an adult (other than a member of the police force) who was present with the consent of the child, or
(iv) a barrister or solicitor of the child’s own choosing, or
(b) the person acting judicially in those proceedings:
(i) is satisfied that there was proper and sufficient reason for the absence of such an adult from the place where, or throughout the period of time during which, the statement, confession, admission or information was made or given, and
(ii) considers that, in the particular circumstances of the case, the statement, confession, admission or information should be admitted in evidence in those proceedings.
(2) In this section:
(a) a reference to a person acting judicially includes a reference to a
person making a determination as to the admissibility of evidence in
committal proceedings, and
(b) a reference to criminal proceedings is a reference to any criminal
proceedings in which a person is alleged to have committed an
offence while a child or which arise out of any other criminal
proceedings in which a person is alleged to have committed an
offence while a child.
(3) Nothing in this section limits or affects the admissibility in evidence in any criminal proceedings against a child of any statement or information that the child is required to make or give by virtue of the provisions of any Act or law.

11 When making the earlier ruling the Magistrate said to the effect that he was not satisfied that there was proper and sufficient reason for there not being present an adult who was not a member of the police service. At that point the Magistrate said in relation to Mr Morley’s evidence “I make no ruling on its eventual admissibility as to evidence relating to identification at a later time when s 13 may or may not be appropriate to consider.” Later when ruling on the objection to the picture identification evidence the Magistrate made the observations set out in para [9]. 12 At first sight it might seem that if Mr Morley’s evidence was not admissible on the principal issues because of the operation of s 13 of the Children (Criminal Proceedings) Act 1987 and the absence of an adult, it was not admissible for the limited purpose of ruling on the admissibility of the picture identification evidence either, and for the same reason. However that contention was not made on behalf of the plaintiff in the appeal, and I was told that it was not made because it is now conceded that an adult who was present, Aboriginal Community Legal Officer West, was not in fact a member of the police force. 13 Before the Children’s Court reliance was also placed in support of the objection to the picture identification evidence on s 138 of the Evidence Act 1995, which relates to the discretion to exclude evidence which is improperly or illegally obtained. That was not relied on in the appeal. 14 The substantial matters argued in the appeal related to the operation of s 424A of the Crimes Act 1900. That section was inserted in the Crimes Act by the Evidence (Consequential And Other Provisions) Act 1995, a cognate enactment with the Evidence Act 1995. Section 424A provides:

424A.(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 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 superir) 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.

15 (Section 424A of the Crimes Act is no longer in force; substantially identical provision is now made by s 108 of the Criminal Procedure Act 1986, which was inserted in that Act by the Crimes Legislation Amendment (Sentencing) Act 1999 and took effect on 1 January 2000.) 16 So it was essential for the admissibility of picture identification evidence that there be a finding for the purpose of ruling on the objection that the now plaintiff refused to take part in an identification parade. That finding must have been based on the exchange recorded in Detective Morley’s statement as “I said ‘Do you wish to participate in a line-up?’ He said ‘No.’” which if itself admissible is a clear basis for finding that there was a refusal. If evidence of this exchange is evidence of an admission within the meaning of s 424A it was an error to admit it in evidence for the purposes of ruling on the objection, because none of the exceptions in paras (a), (b) and (c) of subs (2) applied in fact; there is no tape recording of the interview referred to in Mr Morley’s statement, no tape recording of a confirmatory interview and no evidence of a reasonable excuse as to why such tape recordings could not be made. 17 Submissions were made on the question whether there was a reasonable excuse within para (c) and subs 424A(2). In my view there was no evidence which raised the question of reasonable excuse for consideration; the plaintiff and Mr Morley were in an interview room at Wellington Police Station where there was electronic recording equipment and there is no evidence of circumstances of which explains why it was not used or why a further recording as contemplated by para (b) was not made. 18 Counsel for Mr Morley submitted that refusal to be interviewed at all, whether electronically or not, provided the interviewing officer with a reasonable excuse for not recording the refusal to participate in the line-up. This submission was supported by factual illustrations of the difficulties of conducting investigations which are produced if statements declining to be interviewed, and declining to participate in a line-up are themselves not admissible unless recorded. It may well be difficult or impossible to see that a statement is an admission when it is made; the question whether the statement is adverse to the maker’s interest is to be appraised at the time of the ruling on its admissibility. This blunts the significance of claims of efficiency of investigation. It is however clear that these provisions create practical difficulties for the conduct of investigations. Efficiency of investigation and prosecution were not primary considerations in the purposes of these enactments, which are protective legislation directed at limiting the occasions on which there may be judicial decisions based on relatively doubtful material about whether admissions relating to serious offences in truth were made; the legislation protects the administration of justice and the community generally and individually against convictions on uncertain bases, and also protects police officers against involvement in challenges to their credibility. 19 The definition of “admission” in subs (4) is a limiting definition and does not attempt to say what an admission is; it uses the word in a circular way so as to exclude some instances of what it would otherwise mean. The meaning of “admission” must be understood with the definitions in the Dictionary of the cognate Evidence Act 1995 - see Horton (1998) 104 A Crim R 306 at 313 per Wood CJ at CL for the view that the two pieces of legislation are cognate and that s 424A was enacted to provide additional requirements for admissibility of admissions cumulative to those applied by Pt 3.4. 20 It is necessary to take together the definitions of “admission”, “previous representation” and “representation” in the Dictionary of the Evidence Act:

admission means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b) adverse to the person’s interest in the outcome of the proceeding.
previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
representation includes:
(a) an express or implied representation (whether oral or in writing); or
(b) a representation to the inferred from conduct; or
(c) a representation not intended by its maker to be communicated to or seen by another person; or
(d) a representation that for any reason is not communicated.

21 The concept of a previous representation is introduced in Pt 3.2 of the Evidence Act by the statement in s 59 of the hearsay rule:

59.(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.

22 This teaches us that a representation is or can be something which is intended to assert the existence of a fact. 23 Section 72 creates an exception.

72. The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.

24 A number of sections state other exceptions, also by reference of the word “representation”. Section 81 creates an exception to the hearsay rule in respect of admissions in these terms:

81.(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation:
(a) that was made in relation to an admission at the time the
admission was made, or shortly before or after that time; and
(b) to which it is reasonably necessary to refer in order to
understand the admission.

25 Section 82 provides:

82. Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless:
(a) it is given orally by a person who saw, heard or otherwise perceived the admission being made; or
(b) it is a document in which the admission is made.

26 Sections 85 and 86 make special provisions relating to admissibility in evidence of admissions made by a defendant in criminal proceedings. Section 424A supplements ss 85 and 86 by imposing additional conditions for reception in evidence where the admission is made to an investigating official in the course of official questioning, and then only in the case of certain indictable offences. The appearance of this provision in the Crimes Act and now in the Criminal Procedure Act 1986 may be attributable to avoiding disturbance of textual uniformity with the Evidence Act 1995 (Cth). 27 The definition of “representation” in the Dictionary is a definition of inclusion; it is circular in its use of “representation”, and it is not purportedly exhaustive. The questions of difficulty begin with whether the plaintiff’s statement “No” in the context of the question to which it responded was a representation; if it was, it was a previous representation as defined, and within the inclusions of paras (a) and (b) of the definition of “representation”. This leads on to the further difficulty of the implications for the construction and application of s 424A which should be understood to flow from the cognate character of the two enactments: the difficulty of the extent to which the meaning of “admission” in s 424A is established and controlled by reasoning on the terms of the cognate Evidence Act. 28 The statement “No” in its context does not fall within any meaning of the word “admission” in ordinary usage, or in any usage known to me in evidence law or other law. If “admission” in s 424A is to be understood in the context of s 424A itself, in my opinion the statement was not an admission; it was a direct statement on the subject of the plaintiff’s wishes about taking part in an identification parade, and was not in any sense an admission or (to search for illustrative analogies) a narration, a relation or a representation about whether some state of facts existed. Nothing in the definition of “admission” set out in s424A could lead to any qualification of this opinion. The statement is an admission within the meaning of that word in s 424A only if s 424A is in this respect controlled by applying the definitions in the Dictionary in the Evidence Act 1995, and if the meaning of “admission” is established by tracing through the chain of definitions to the word “representation”, and establishing the meaning of “representation” by considerations based on the way in which that word is used in the Evidence Act. The meaning of “representation” is not in my view relevantly assisted by the inclusions in the definition of “representation” in the Dictionary. 29 The word “representation” in ordinary usage is in my understanding capable of several shades of meaning; it can refer to a narration of some fact, case or argument, to an assertion that some state of fact is correct, and it can also refer to the depiction, it may be in words, of something which stands in the place of but is known not to be the original state of fact. I see no reason to think that the legislature intended by defining “admission” in the Dictionary by reference to “representation” to depart wholly from what, in the previous law of evidence, was understood to be an admission and was received in evidence as such. 30 Counsel for the plaintiff referred me to passages in the Law Reform Commission’s Interim Report No 26, but not to any passage which comments on or tends to explain choice of the word “representation” as an integer in the definition of the word “admission”. At para 755 reference was made to uncertainty as to the precise definition of an admission - “Definition. Existing uncertainty as to the precise definition of an admission has been noted - whether it should be defined simply as evidence of a party’s assertion adduced by an opponent, or evidence of an assertion that is against the party’s interest at trial.” I gain no assistance from the passages in the interim report to which I was referred for an understanding why “admission” should be taken to have been defined by reference to the word “representation”. 31 Counsel offered the analysis that the plaintiff in stating “No” in answer to the question was admitting or representing the state of his mind on the subject with which the question dealt. To my mind this is a highly artificial analysis of the process which was taking place, and it does not accord with the basis in which in the general law of evidence statements about a person’s state of mind or feelings were admitted; they were admitted in evidence as original evidence of the state of mind or feelings, and not as admissions about what they are. For that reason they were admitted generally, and not only against those making the statements. In the Evidence Act the reception into evidence of a contemporaneous representation about a person’s intentions, state of mind and related matters is dealt with expressly in s 72, and is there spoken of as a representation. 32 In the sense in which “representation” is used in s 72 of the Evidence Act, a statement about a person’s contemporaneous state of mind is a representation. It is for consideration whether this use established the meaning of “representation” which the Dictionary incorporates in “admission” as defined and whether the result of so doing establishes the meaning of s 424A. Where the Evidence Act deals with admissions in general language which could literally extend to reception in evidence of statements about a state of mind there is no exception such as s 72 makes for the general operation of the hearsay rule to representations. Nor is there any such exception in relation to s 424A of the Crimes Act. 33 The effect of the contentions on behalf of the plaintiff is that as used in the Evidence Act a representation includes a statement about a person’s contemporaneous intentions or state of mind, including the person’s wish or will, such as that attributed to the plaintiff in Mr Morley’s evidence, that the Dictionary includes this reach of “representation” in the meaning of “admission” in the Dictionary, and that this result holds for the word “admission” in s 424A. 34 I find this reading and conclusion highly artificial; according to ordinary concepts and usage, “admission” would not extend to such a statement. However the argument finds apparent support in the language of the Dictionary and in the application, which has been authoritatively accepted, of meanings in the Dictionary to s 424A. 35 On behalf of the plaintiff counsel submitted that the fact that the prosecution did not rely on the representation for a hearsay purpose does not mean that it falls outside the definition. In support of this submission counsel referred to Hinton (1999) 103 A Crim R 142; I do not find support for the proposition in that decision. Hinton does illustrate that a previous representation may, within the Dictionary definition of “admission”, be adverse to the person’s interest in the outcome of the proceeding in other ways than by confessing the crime charged or a fact which is an element in it, and also illustrates that a statement intended to be exculpatory may be adverse to the person’s interest. That that is so is also shown by Esposito (1998) 105 A Crim R 27 at 43-44 (Wood CJ at CL). 36 The exchange of questions and answers under objection could not fall within the ordinary and natural meaning of “admission”. In my opinion it does not fall within the meaning of “admission” as used in s 424A if that section is understood on its own, or as it is set in the context of other references in the Crimes Act 1900 to admissions, and the possibility that it does fall within that meaning only comes under consideration by a chain of reasoning which leads through the cognate character of the Evidence Act 1995 with the legislation which introduced s 424A into the Crimes Act, and through the definitions in the Dictionary of the Evidence Act of “previous representation” and “representation”, to uses in the Evidence Act of “representation” including use of “representation” in s 72 in a way which shows that the word was used in that section, and (it could be supposed) should be taken to have been used elsewhere in the Evidence Act 1995 (including the Dictionary) in a way which can refer to a statement expressing a person’s intention or state of mind. 37 To my mind the use of the word “representation” in s 72 (and I have not observed any parallel use elsewhere in the Evidence Act) is highly artificial. The plaintiff’s counsel put to me the interpretation of what took place that the plaintiff by saying the word “No” was making a representation about his state of mind at the time. This in my view is a highly artificial perception of what a representation is, and of what occurs when a person expresses a consent, a refusal or another state of mind. In my view what takes place is a consent or a refusal; the consent or refusal is an event itself, or it could be called a fact of itself, and it is only in an obscuringly indirect way that it could be perceived as a representation about a state of mind, or that it could be supposed that the word “representation” was used in the Dictionary in a sense which included it. The word sets up a generalised frame of reference, and is not highly indicative, and in considering its application to a concrete situation it seems important to have regard to the purposes for which the provision in which it is used was enacted. 38 The meaning of “admission” in s 424A was considered extensively in the judgment of Wood CJ at CL with the concurrence of Sully and Ireland JJ in the Court of Criminal Appeal in Horton (1998) 108 A Crim R 306. The decision of the Court of Criminal Appeal is not strictly binding on a judge hearing an appeal under Pt 5 of the Justices Act 1902 because further appeal lies to the Court of Appeal and not the Court of Criminal Appeal: see Supreme Court Act 1970 s 101(1)(h). “The essential basis for the observance of a decision by a tribunal by way of binding precedent is that that tribunal can correct the decisions of the court which is said so to be bound” per Barwick CJ in Viro v. The Queen (1978) 141 CLR 88 at 93. See too Gibbs J at 120. However Horton is of considerable authority, and it is persuasive in its reasoning. Section 424A was held to extend to a statement which was literally exculpatory but was relevant in a way adverse to the interests of the accused in that the fact that she had been able to furnish an exculpatory statement was relevant to her degree of intoxication and to the formation of intent. In relation to what the statement tended to prove if admitted in evidence, the statement had none of the character of a consent, a refusal or in any other way of a contemporaneous representation about the accused’s intention or state of mind. 39 The judgment of Wood CJ at CL shows, at 313, that it is correct to look to the Evidence Act for the meaning of the expression “admission” in s 424A. Wood CJ at CL did not apply the incorporated Dictionary definitions in a highly literal or mechanistic way; his Honour directed detailed attention to the concept of an admission, and did not act on the basis that the word “representation” is wholly substituted by the chain of reference. The judgment did not examine or expound the meaning of “representation”, or any question relating to the reach of “admission” in s 424A(2) to evidence of a refusal or consent. His Honour’s judgment does show that although the Dictionary definition of “admission” is purportedly an exhaustive definition by reference to the further term “representation” there has not been an entire departure from the concept of an admission according to ordinary usage and other statutory usage. At least in concept words of refusal might in some circumstances be relevant to the proof of the offence; as the facts in Horton show, circumstances may make a statement relevant to the proof of an offence, although on its face it is exculpatory or has no bearing on the offence. There are no such circumstances here, and it could not be said that, even in the most indirect way, the refusal was relevant to the question whether or not the plaintiff was the offender. An example given in Horton at 318 is a statement put in evidence as weakening the accused’s credibility. The passage under objection in this case could not be so used. 40 At 317-318 Wood CJ at CL examined the mischief to which s 424A was addressed and the Second Reading Speech to the Legislative Council in support of it. The passage in that speech which most closely bears on the purpose of the enactment of s 424A is as follows:

The Police Service has already introduced a system for the electronic recording of interviews, implementing the 1986 report for the criminal law review division of the Attorney-General’s Department. That report set out four objectives for adopting and electronic system:
1. To provide the Courts 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 that report by providing that any unreasonable failure to adhere to the system will result in the admissibility of the evidence. The courts are thereby enabled to supervise the operation of the system.

41   The word used is “admission” and a clear expression of legislative intention would be required if it were to be established that the word was used to refer to or to include something quite different to its ordinary meaning. Statutory definitions can be quite artificial, but there is usually good reason for choosing the defined word. “It is often the case that the most important aspect of a statutory definition is the word being defined” - per Spigelman CJ in Repatriation Commission v. Vietnam Veterans’ Association [2000] NSWCA 65 at para [104]. If an artificial meaning is given to a word by legislation, I would think that its full force will not necessarily be carried through to the use of the word in cognate legislation, the terms and purposes of which are also important. 42 At the heart of submissions by plaintiff’s counsel was the clearly expressed contention that “admission” includes a representation which is adverse to the interests of the plaintiff in the sense that it is put in evidence to support the admission of other adverse evidence, and that the plaintiff’s word “No” is a representation. The contention was that the policy behind the legislation is to ensure the reliability of any statement made by a suspect that is sought to be used against him in criminal proceedings, and that this appears from the four objectives listed in the Second Reading Speech, particularly from the first. 43 Counsel for Mr Morley submitted that “admissions” only includes representations which are adverse to the person making them. Counsel contended that it is significant that it could not be seen by the interviewing officer at the time of the conversation relating to refusal to participate in a line-up whether the refusal was adverse to the interests of the plaintiff; that would depend on the outcome of the line-up and if there was no line-up that could not be known at any time. 44 My view is that the frame of reference in which s 424A was enacted was unsatisfactory experience relating to proof of admissions made in police interviews. When a purposive construction is given to the word “admission” in s 424A, taken with the indeterminate penumbrum of meaning of “representation” incorporated by several stages of reference, I am of the view that it does not extend to the evidence under objection in relation to the proof of whether or not the defendant refused to take part in an identification parade within s 115(4)(a). What is required to be proved is that the defendant refused to take part in an identification parade. The proof offered was direct proof of the event of the defendant saying something which in context was a refusal, and there was no proof of an admission. Conceivably a different kind of proof might be offered: a later statement admitting that there had been a refusal would have to pass the tests for admissibility under s424A. The prosecution case did not include any such step. In my opinion s424A, when understood by reference to its own language, its statutory context and the purposes for which it was enacted, was not intended to apply to proof of the first kind: or (to restate that opinion) was not intended to use “admission” in a sense which applied to proof of the first kind. 45 It appeared to me that it was open to consideration whether the relation between the terms of the refusal and the proof of the offence was sufficiently direct for it to be concluded that the admission related to the alleged offence within para (c) of the definition of “admission” in s424A. Counsel for the second defendant did not rely on any such question and I leave it unexamined. 46 Counsel for the second defendant contended that subs 85(2) of the Evidence Act demonstrates that admissions are something the truth of which is relevant. It was submitted that a statement the truth of which is not relevant is not an admission. I have not based my opinion on subs.85(2). 47 On behalf of Mr Morley counsel submitted that if it were accepted that the plaintiff’s answer was an admission (and his submissions did not accept that) the answer was not a previous representation which was “adverse to the person’s interest in the outcome of the proceedings” in terms of para (b) of the Dictionary definition of “admission”. It was contended that it could only be said that a refusal to participate in a line-up was adverse to the person’s interest if it were known whether or not he would be identified in a line-up. I do not accept this submission; the time at which the question whether the representation is adverse to the person’s interest in the outcome of the proceedings is to be tested is the time at which it is tendered in evidence, and it is clear that at that time it was adverse to the (now) plaintiff’s interest in the outcome because it supported the reception of picture identification evidence. 48 In my opinion the evidence objected to was admissible for the purpose for which it was relied on. The appeal should be dismissed. 49 Order: The appeal is dismissed.

Last Modified: 09/26/2000