Tasmania v B
[2012] TASSC 38
•13 June 2012
[2012] TASSC 38
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v B [2012] TASSC 38
PARTIES: TASMANIA, State of
v
B
FILE NO/S: 233/2011
DELIVERED ON: 13 June 2012
DELIVERED AT: Burnie
HEARING DATE: 13 June 2012
JUDGMENT OF: Blow J
CATCHWORDS:
Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Electronic recording – Admissions at police station and accused's home not electronically recorded – No audio-visually recorded interview when accused invited to adopt or confirm making of admissions – Audio-visual recording facilities available – Whether reasonable explanation why audio-visual record of adoption or confirmation of admissions could not be made – Whether exceptional circumstances which in the interests of justice justified the admission of the evidence.
Evidence Act 2001 (Tas), s85A(1)(c), (d).
R v Julin [2000] TASSC 50, followed.
Kelly v R (2004) 218 CLR 216; R v Arnol (1997) 6 Tas R 374; R v McKenzie [1999] TASSC 36; Tasmania v Cadman (2011) 208 A Crim R 541, referred to.
Aust Dig Criminal Law [2753]
REPRESENTATION:
Counsel:
State: K Brown
Accused: J Walshe
Solicitors:
State: Director of Public Prosecutions
Accused: Wright Gilmour
Judgment Number: [2012] TASSC 38
Number of paragraphs: 23
Serial No 38/2912
File No 233/2011
STATE OF TASMANIA v B
REASONS FOR DETERMINATION BLOW J
(Edited version of oral ruling) 13 June 2012
I have been asked to make determinations as to the admissibility of some pieces of evidence prior to the empanelment of a jury pursuant to the Criminal Code, s361A. The accused has been charged on a single count of armed robbery. He has been arraigned, and has pleaded not guilty to that charge. The Crown case is that in the early hours of 19 March 2011 he robbed a service station attendant of some cash at a service station in Burnie, and that he was armed with a knife which had come from a block of knives in his residence. The principal issue in the trial is whether he was the robber. He was under 18 at the time of the alleged robbery.
I have been asked to make a determination as to the admissibility of evidence of a phone call said to have been made by his sister to the police and recorded. The Crown proposes to adduce evidence of that phone call in the form of a recording of a conversation during which the sister named the accused, and referred to a robbery of a service station in Burnie the previous night. Towards the end of the call she said, referring to the accused, "… he told me he's done it" – "it" being a reference to the service station robbery. A supplemental proof of the accused's sister's evidence has been provided by the Crown. The evidence that the Crown proposes to lead from her falls short of evidence that the accused told her that he had committed the robbery in question.
The starting point is that the evidence that the Crown seeks to adduce in relation to the sister's conversation is evidence as to an admission by the accused that he committed the robbery. Evidence of an admission is hearsay. Within the meaning of the Evidence Act 2001, s59, it is evidence of "a previous representation made by a person". As a general rule, by virtue of s59, that is, the hearsay rule, hearsay is not admissible to prove the truth of the fact or facts asserted. Section 81 of the Evidence Act makes an exception in relation to admissions. If the accused told his sister that he committed the robbery, that is an admission. If the sister were to give evidence to that effect, then s81(1) would apply, and the hearsay rule would not prevent the giving of evidence by her of that admission. Section 81(1) creates an exception to the hearsay rule in relation to admissions, but s82 limits the scope of the exception to the hearsay rule, and preserves the operation of the hearsay rule in certain situations. The relevant provision is s82(a). It provides:
"Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless —
(a)it is given by a person who saw, heard or otherwise perceived the admission being made".
The word "it" refers to the evidence of the admission.
The Crown prosecutor told me that she does not seek, as I understand it, to lead evidence from the radio room operator, who took the sister's call, of what the sister said to her. But she does intend to adduce evidence that that operator downloaded the recording of the call. The Crown wants to adduce evidence of the recording, as distinct from evidence of the operator of what was said to her. Either way it is my view that s82 applies to make the evidence from anyone other than the sister inadmissible. Evidence from the operator of what the sister said to her would be evidence of an admission, that is evidence of an admission made by the accused. But, for the purposes of s82(a), it would not be evidence given by a person who saw, heard or otherwise perceived the admission being made. It would be second-hand hearsay – evidence given by the radio room operator, not the sister. Similarly evidence of the downloading of a recording would be evidence of an admission. It would be evidence of the person who produced the downloaded recording of an admission made by the accused. And it would be evidence given, not by the person who saw or heard or otherwise perceived the admission being made, but evidence of someone else, evidence of someone who has downloaded a recording. So, either way, in my view, s82 makes the evidence that the Crown has in relation to that recording inadmissible. I therefore determine that the evidence of the recording, said to be a recording of a phone call made by the accused's sister, is inadmissible.
I have also been asked to rule on the admissibility of admissions made to police officers by the accused. The sequence of events was this. On 19 March last year he went to the Burnie police station, accompanied by a Mr Mark Lavelle. Mr Lavelle is employed by an organisation that has been referred to as the Aboriginal Legal Service. He is not a lawyer, but he was in contact with a lawyer, Mr Petersen, who provided some advice for the benefit of the accused. At the Burnie police station, the accused and Mr Lavelle met two detectives, Detective Senior Sergeant Stolp and Detective Constable Johnston. Mr Johnston took them to an interview room, where they met Sgt Stolp. That was not an interview room that was equipped with audio-visual recording equipment, but there was at least one such room at that police station. After the two visitors and the two detectives had been introduced to one another, Mr Lavelle informed the detectives that the accused would not be answering any questions in relation to the alleged robbery. That apparently came as a complete surprise to the two detectives, who thought they were going there for the purpose of an interview during which the accused would confess. There was a discussion. The detectives left the room. One of them provided Mr Lavelle with a telephone so that there could be a discussion with the solicitor. After an interval the detectives returned to the room. Mr Lavelle confirmed that on legal advice the accused would not be answering any questions. Sgt Stolp then said something to the effect of, "Bearing in mind you don't have to say anything, are you prepared to tell me what happened?" Now it is worth noting that, at that point, she administered a caution of sorts, but it was not a full caution. She told the accused that he did not have to say anything. She did not tell him that he did not have to do anything, and she did not tell him that anything he said or did would be recorded. He evidently said that he was not prepared to answer questions, or was not prepared to comment. Mr Lavelle volunteered that he and the accused were prepared to assist with the location of the knife, which was behind the Civic Centre. Det Johnston had found the knife and told them it was no longer there. Up to that point, the detectives had not asked the accused any questions about the robbery. But at that point, Det Johnston did start asking him questions.
He asked him whether the knife was part of a set, and where the rest of the set was. He asked him about his clothing, and he asked him how he got home. The accused, despite the prior assertion that he was not going to answer any questions, answered all the detective's questions. Mr Lavelle eventually spoke up, and said that the accused would not be speaking further about the matter. Mr Johnston then asked the accused whether he was prepared to take the detectives to his home and give them the knife block. The accused replied to the effect that that would be all right. After that, the group of four moved to a room where there was audio-visual recording equipment. A formal interview was commenced. There was a full caution. The accused did not answer any questions. He was not asked to confirm that he had been asked questions and made admissions in the course of the conversation in the room that the group had first been in. Sgt Stolp had made notes of that conversation in that room, but the accused had not been asked to sign those notes, and he was not asked on camera anything about the admissions that he had made in the original room. The formal video-recording was concluded. The group moved to the charge room. Other procedures were completed, and the custody sergeant released the accused into the custody of Det Johnston for the purpose of a trip to his home.
The group of four went to the accused's home. The accused unlocked the unit, let the others in, pointed to a knife block on the kitchen bench that had one knife missing, and said words to the effect of "It's just there". Now, at that point, he had not been asked any questions since the video-recorded interview. But after he pointed out the knife block and made a comment, Det Johnston started asking him questions again. He asked him questions about his clothes and his shoes, and about what happened to the money from the robbery. The accused answered those questions. Notes were made at the unit recording the accused's admissions. The accused was taken back to the police station. He was brought back before the custody sergeant, and was returned to custody so that routine procedures such as fingerprinting and DNA testing could be completed. Everything that went on in the charge room was audio-visually recorded automatically by a CCTV camera in that room. There was evidence that, as well as the video room with audio-visual recording facilities, the Burnie CIB had a hand-held video camera that was routinely used in non-consensual searches, or searches in the absence of the property occupier to whom the search related. Also, there was evidence that, when appropriate, CIB officers can get Forensic Service officers to attend search scenes with video cameras.
The Crown argued that the evidence of admissions made by the accused could, and should, be admitted pursuant to s85A(1)(c) and (d) of the Evidence Act. Prima facie the evidence of an admission in a proceeding for a serious offence during official questioning is not admissible. Paragraphs (a), (b), (c) and (d) of s85A(1), make such evidence admissible in different circumstances. Reliance was not placed on pars(a) and (b) of that subsection, and that is entirely appropriate. There was not an audio-visual record of an interview with the accused in the course of which any admission was made, so par(a) did not apply. There was not an audio-visual record of an interview during which the accused stated that he had made an admission, or confirmed the substance of an admission, and so par(b) did not apply. But the Crown relied on pars(c) and (d).
Section 85A(1)(c) makes evidence of an admission during official questioning admissible when "the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record as referred to in paragraph (a) or (b) could not be made". In this case, no attempt was made to create an audio-visual record of the events at the accused's home, or of the conversation at the accused's home. No attempt was made to obtain a confirmatory audio-visual recording that would satisfy s85A(1)(b), either in relation to the first set of admissions that occurred in the first interview room, or on return to the police station after the second set of admissions were made at the house. If such an attempt had been made and the accused had declined or failed to confirm what he had earlier admitted, I would probably have been satisfied that there was a reasonable explanation. I note that Crawford CJ was satisfied of there being such a reasonable explanation in such circumstances in Tasmania v Cadman (2011) 208 A Crim R 541.
The purpose of s85A is to overcome the problems associated with reliance upon uncorroborated police evidence as to admissions made to police officers. There is a long discussion of those problems in Kelly v R (2004) 218 CLR 216 by Gleeson CJ, and Hayne and Heydon JJ at pars[22] to [29]. It is clear that the purpose of s85A, like its predecessor s8 of the Criminal Law (Detention and Interrogation) Act 1995, which their Honours discussed in that case, was to overcome those problems.
In this case, the accused was unwilling to make admissions in a formal audio-visually recorded interview. He did make admissions in answers to some questions in the course of informal questioning, first at the police station, and later at his home. It may well have been that, if invited to, he would have confirmed on camera what he had said, and what had been noted.
Ms Brown, the prosecutor, submitted that it was not reasonable to take the accused to the room with audio-visual equipment and invite him to confirm that he had made those admissions, given that he had indicated that he was not willing to answer questions, and given that that would have taken time. I disagree. This was a serious matter. The accused was facing a charge of armed robbery. It was appropriate that whatever time was needed should have been taken to give him the opportunity to confirm or refute the suggestion that admissions had been made.
In all of those circumstances, I am not satisfied that there was a reasonable explanation as to why an audio-visual record, as referred to in s85A(1)(b), could not have been made. To put it simply, no attempt was made to make a recording in which the accused could have confirmed the making of the admissions that he in fact made. The equipment was there. Time was not a problem. It was a serious matter. The policy of the legislature made clear in s85A is that, where possible, there ought to be audio-visual recording evidence so that the evidence of police officers as to admissions made to them is not left uncorroborated. In R v Julin [2000] TASSC 50, which concerned s8 of the 1995 Act, Evans J held that, in circumstances very similar to the present circumstances, there was no reasonable explanation as to why a confirmatory recording could not have been made. I think in the circumstances I should follow what his Honour decided. In my view, the prosecution has not proven, on the balance of probabilities, that there was a reasonable explanation within the scope of s85A(1)(c).
I turn to s85A(1)(d). It is the equivalent of s8(2)(d) of the 1995 Act. Zeeman J commented in R v Arnol (1997) 6 Tas R 374 at 379 that, "courts should be slow to admit evidence in reliance on s8(2)(d)". In my view courts should be slow to admit evidence in reliance on s85A(1)(d) of the Evidence Act. That provision makes evidence of admissions during official questioning admissible when "the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence". Exceptional circumstances have been described as circumstances that are "out of the ordinary": R v McKenzie [1999] TASSC 36 at par[12] (Wright J).
In this case, it was argued that there were exceptional circumstances because the officers believed that the accused had given himself up, and yet found that, although he had presented himself at the police station, he was not willing to answer their questions. They had never known such a situation. Such a situation is not unheard of, at least in my experience, but, for the purposes of this determination, I accept that those were circumstances that were out of the ordinary.
The prosecutor also relied on the evidence that the accused had permitted a search of his home, and that there was conversation about the search of his home, before and after that search, in the charge room, where the closed-circuit television was operating, and an audio-visual recording of each conversation was automatically made.
It is significant that there were exceptional circumstances. But, for, par(d) to make evidence admissible, it is not enough that there be exceptional circumstances. It is necessary also that, in the interests of justice, those exceptional circumstances must justify the admission of the evidence. In my view the surprising circumstances of a youth presenting himself at the police station, but then not being willing to answer questions, do not provide any reason for the detectives not to have asked him, in a video-recorded interview, whether he made the admissions that they noted in the first interview room and then at his home.
There are other matters that, to me, weigh against it being in the interests of justice for the evidence of the admissions to be admitted. The accused was under the age of 18. His parents were not present. There was an adult present with him, but that man was not a lawyer. The man who was present with him, although he indicated that the accused was not willing to answer questions, did not speak up when the police did start asking questions until several questions had been asked and answers given. Even after he spoke up, there was another question asked about willingness to submit to a search and hand over the knife block, and he did not intervene, but allowed an answer to be given to that question. The caution given at the beginning of the first conversation was incomplete. And the police did not take advantage of an opportunity to invite the accused to confirm, in an audio-visually recorded interview, the admissions that he had earlier made. Very significantly, in my view, Det Johnston did not respect the accused's choice not to answer questions, but persisted in asking questions, even though he had been told that the accused did not want to answer them. Now, that is common in interviews involving adults. I would not take a terribly serious view of it if an adult said he or she did not want to answer questions, and an officer persisted. But where the person being questioned is a youth whose parents are absent, and the police take advantage of a situation where an independent adult, keeping the youth company, does not speak up and insist on them not asking questions, I think that that is a serious matter to be taken into consideration in deciding where the interests of justice lie.
In my view, although there are exceptional circumstances in this case, the exceptional circumstances do not justify the admission of the evidence. So in my view par(d) is not satisfied, and therefore the admissions made by the accused during the official questioning at the police station and at his home are not made admissible by s85A(1).
It is necessary, however, to determine what admissions occurred during the official questioning at those two places, and what admissions did not. In my view, it is possible for official questioning to begin and end, and then for further official questioning to take place after an interval. Support for this view can be found in Kelly v R (above) at par[53] and in R v Julin (above) at par[12]. In both of those passages there was reference to a situation where official questioning did not resume after an interval. But those passages, in my view, support the proposition that when there is official questioning at one place, an interval, and then official questioning at a second place, then the official questioning should not be regarded necessarily as continuing during the interval. In this case, the questioning ended at the end of the video-recorded interview at the police station. When the accused was taken before the custody sergeant, official questioning was not occurring. When he was driven to his home, official questioning was not occurring. But there was a second episode of official questioning at his home.
Now Mr Lavelle's comment at the police station, to the effect that he and the accused were willing to assist in relation to the location of the knife behind the Civic Centre, was made in the presence of the accused before any official questioning began, and therefore evidence of it must be admissible. And when the foursome got to the accused's home and the accused pointed out the knife block and made a comment about it, official questioning was not occurring, so evidence as to that must be admissible. Towards the end of the conversation in the first interview room, when Det Johnston asked the accused whether he was prepared to take the detectives to his home and give them the knife block, and he agreed, in my view official questioning was still occurring, so evidence of that question and response must be inadmissible.
Insofar as the admissible evidence of admissions is concerned, and that may only be confined to what was said and done at the accused's home before questioning about his clothes resumed, I do not think there is any danger of unfair prejudice. In my view there is no reason for the jury to give the evidence as to what was said and done at his home before questioning took place any more weight than that evidence deserved, and there is nothing about that evidence that might inflame the jury's emotions and divert them from their task. And that was all after the full caution that was given during the video-recorded interview. I do not think that this is a situation where the probative value of that evidence is outweighed by any danger of unfair prejudice, with the result that it is inadmissible.
I determine that the evidence of Mr Lavelle's comment about being prepared to assist with the location of the knife is admissible. The evidence as to Mr Johnston's questions and the accused's admissions in response to them in the first interview room, up to and including his agreement to going to his home and giving the detectives the knife block, is inadmissible. The evidence of the accused pointing out and commenting on the knife block at his home is admissible. All the evidence of subsequent conversation at his home is inadmissible.