Tasmania v Cadman
[2011] TASSC 2
•31 January 2011
[2011] TASSC 2
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Cadman [2011] TASSC 2
PARTIES: TASMANIA, State of
v
CADMAN, Joshua Paul
FILE NO/S: 382/2010
DELIVERED ON: 31 January 2011
DELIVERED AT: Launceston
HEARING DATE: 2 December 2010
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Other matters – Admission made to police officer following flight – Whether admission made during official questioning – Whether reasonable explanation why audio visual record of admission could not be made – Subsequent audio visual record of interview with the accused where he declined to adopt or confirm the making of the admission – Whether reasonable explanation why audio visual record of adoption or confirmation of the admission could not be made.
Kelly v R (2004) 218 CLR 216; followed.
Director of Public Prosecutions v Cook [2006] TASSC 75; R v Julin [2000] TASSC 50, referred to.
R v McKenzie [1999] TASSC 36, disapproved.
Evidence Act 2001 (Tas), s85A(1).
Aust Dig Criminal Law [2754]
REPRESENTATION:
Counsel:
Crown: A Hensley
Accused: A Hall
Solicitors:
Crown: Director of Public Prosecutions
Accused: Grant Tucker
Judgment Number: [2011] TASSC 2
Number of paragraphs: 44
Serial No 2/2011
File No 382/2010
STATE OF TASMANIA v JOSHUA PAUL CADMAN
REASONS FOR JUDGMENT CRAWFORD CJ
31 January 2011
I am required to determine the admissibility of evidence of an admission made by the accused to police officers shortly after he was arrested near the scene of the alleged crime. The admission was not recorded electronically.
He is charged with committing an unlawful act intended to cause bodily harm contrary to the Criminal Code, s170. It is alleged that in the early hours of 1 January 2010 in a public street at Ravenswood, he struck a man in the head with a metal star picket.
I understand the Crown case to be that there was an altercation between a number of people, who included the accused, and that the complainant and his wife tried to break up a physical fight or altercation between two people when the accused struck the complainant in the head with the picket, causing a fracture to his skull.
On the voir dire, I heard evidence from Sergeant Hanson and Constable Hart to determine the admissibility of the challenged evidence.
The police officers went to the scene of the alleged crime at about 3.45am and then to a nearby unit where they believed the accused might be. Their evidence was that he ran out the back door and away. Police officers gave chase.
Constable Hart's evidence was that he and Constable Bonney found the accused hiding in a carport. He was told that he was under arrest and placed in handcuffs. Within a few seconds Sergeant Hanson arrived on the scene. They walked the accused into a car park area where Sergeant Hanson spoke to him and Constable Hart conducted a pat-down search of him. Constable Hart said that then he used his torch to look around the immediate area for weapons or other things. He had finished doing that and was returning to the others, and was within two or three metres of them, when he heard Sergeant Hanson speak to the accused in a stern voice saying: "Josh, you have been arrested for bashing an old man with a star picket. Where is the star picket?" The accused then said: "What was I supposed to do? He was bashing my brother." Constable Hart said that at all material times, the accused was verbally agitated, protesting his innocence in an angry manner.
Sergeant Hanson's evidence was that he went to where Constable Hart and the accused were in the carport. Constable Hart was handcuffing the accused who was agitated. Sergeant Hanson told him that he was under arrest and gave him "a quick caution". Sergeant Hanson explained that it was the full caution but he spoke it quickly and he doubted that the accused heard and understood it. He said that the three of them walked about 10 metres to a driveway, during which time he sent a radio message advising that the accused was in custody and asking that a police officer be tasked to protect the crime scene. They then stopped and waited for Constable Bonney to arrive with a police car. The accused was verbally agitated, protesting that he had done nothing wrong and asking why they had locked him up. Sergeant Hanson said that he was trying to ignore the accused and to organise what needed to be done. Constable Hart then conducted a pat-down search of the accused. Sergeant Hanson frankly admitted that he lost patience with the accused and snapped at him, saying words along the lines: "You're under arrest for bashing a defenceless old man with a star picket." Sergeant Hanson said that immediately following that the two of them talked at about the same time. He said to the accused words to the effect: "Where is the star picket?" The accused said to him: "Bullshit, he was bashing my brother." Sergeant Hanson could not recall that the accused added words to the effect of "what was I supposed to do?" He conceded it was possible that he asked the accused where the star picket was before the accused made his utterance.
Because it was Constable Hart's evidence that Sergeant Hanson asked the accused the whereabouts of the star picket before the accused made his statement, and because Sergeant Hanson conceded that may have been the case, I find that it was the case. Counsel for the Crown accepted that it was appropriate for me to make that finding.
Sergeant Hanson's evidence continued that he was aware that the statement of the accused may have constituted an admission but he was tired of him. He repeated the caution clearly and deliberately, making sure that the accused understood it. He then asked him what he wanted to say, but he said nothing.
Sergeant Hanson said that it was not usual practice to carry a video camera when pursuing a suspect. I infer from what he said that it was not usual practice to carry a video camera when responding to a report of a crime by going to the scene and looking for a suspect in the vicinity.
The accused was taken to the police station and kept in custody. He was given the opportunity to contact a friend or a lawyer. Sergeant Hanson went off to make further enquiries.
About eight hours after the arrest the accused was interviewed by two other police officers. An audio visual record of the interview was made and is available. In the course of the interview he denied hitting the complainant with the star picket. A material passage in the interview is the following:
"MHYeah alright and you were brought back to the police station and you said that a police officer told you that he, the old fellow had been hit three or four times in the head.
JCThat blonde headed police officer.
MH Alright. What, what exactly did he tell you about what had happened.
JC Who.
MH The blonde police officer.
JCJust that you're real tough or something aren't ya, something like that you're real tough, real tough, hit him four times, that's all he kept saying.
MHAnd do you remember what his, what, what you said to him.
JCNa.
MHAlright well he's, he's told me that you said to him that the reason you hit him was because his
JCI didn't fucken say shit to him.
MHbecause he was kicking your brother in the head, you thought he was kicking your brother in the head.
JCNo I wasn't talking about that old bloke I was talking about them punks that were on top of Dallas. I was hitting 'em all mate not that old bloke. Hit them all mate he, he's dribbling shit mate I'm telling you I did not swear to god say that to him, you wouldn't believe it anyway but anyway."
It is accepted that the reference to a blonde police officer in that passage was to Sergeant Hanson.
Is there evidence of an admission?
The evidence of Sergeant Hanson and Constable Hart differed concerning what the accused said to Sergeant Hanson. The evidence of Sergeant Hanson did not amount to evidence of an admission by the accused. Instead, the accused was said to have described the allegation that he bashed the man with a star picket as "bullshit". That amounted to a denial of the basic allegation. However, the evidence of Constable Hart did amount to evidence of an admission by the accused. On the basis of that officer's evidence, the statement of the accused is open to the interpretation he was admitting that he bashed the man with a star picket, but justified doing so by his claim that the man was bashing his brother. I deal with the case on the basis that the admission was the one raised by Constable Hart's evidence.
The accused's submissions in general and the Crown's response
Much of the argument concerned the Evidence Act 2001, s85A, which is in these terms:
"(1) Evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning is not admissible unless –
(a) there is available to the court an audio visual record of an interview with the defendant in the course of which the admission was made; or
(b) if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) could not be made, there is available to the court an audio visual record of an interview with the defendant about the making and terms of the admission or the substance of the admission in the course of which the defendant states that he or she made an admission in those terms or confirms the substance of the admission; or
(c) the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) or (b) could not be made; or
(d) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.
(2) A reasonable explanation includes but is not limited to any of the following:
(a) the admission was made when it was not practicable to make an audio visual record of it;
(b) equipment to make an audio visual record of the interview could not be obtained while it was reasonable to detain the defendant;
(c) the defendant did not consent to an audio visual record being made of the interview;
(d) the equipment used to make an audio visual record of the interview malfunctioned.
(3) This section applies only to an admission in the course of official questioning by a defendant who, at the time of making the admission was, or ought reasonably to have been, suspected by an investigating official of having committed the offence."
In general terms, the accused's counsel submitted that the evidence of the admission should not be admitted for the following reasons:
1Because the admission was made after the accused had been arrested and immediately after Sergeant Hanson asked him the whereabouts of the star picket, it was made "during official questioning" for the purposes of s85A. Although counsel for the Crown conceded the point, he only did so hesitatingly and I will deal with the issue.
2For the reason advanced in 1 above, the evidence of the admission was not admissible unless one of the four exceptions in s85A(1) to the operation of the subsection applied.
3The exception in s85A(1)(a) does not apply because there is not available to the Court an audio visual record of an interview with the accused in the course of which the admission was made. The Crown concedes that.
4The exception in s85A(1)(b) does not apply because the prosecution has not proved on the balance of probabilities that there is a reasonable explanation as to why an audio visual record referred to in par(a) could not be made. Further, even if that has been proved, there is not available to the Court an audio visual record of an interview with the accused about the making and terms of the admission, or the substance of the admission, in the course of which the accused stated that he made an admission in those terms or confirmed the substance of the admission. The Crown disputes both limbs of that submission and relies on the exception in par(b).
5The exception in s85A(1)(c) does not apply because the prosecution has not proved on the balance of probabilities that there is a reasonable explanation as to why an audio visual record referred to in pars(a) or (b) could not be made. Counsel for the Crown did not seek to rely on the exception.
6The exception in s85A(1)(d) does not apply because the Court should not be satisfied there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence. The Crown disputes that and relies on the exception in par(d).
7The Court should exercise its discretion under s90 and refuse to admit the evidence because (a) it is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to the accused to use the evidence. The Crown challenges the claim of unfairness to the accused.
8The Court should refuse to admit the evidence under s137 because (a) it is adduced by the prosecutor; and (b) its probative value is outweighed by the danger of unfair prejudice to the accused. The Crown disputes that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.
Was the admission made "during official questioning" for the purposes of s85A?
Section 3(1) defines "official questioning" for the purposes of the Act as "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". The expression "investigating official" is defined as including a police officer. There is no doubt that Sergeant Hanson was an investigating official as that expression is used in the Act.
In Kelly v R (2004) 218 CLR 216 the High Court considered the meaning of "in the course of official questioning" in the Criminal Law (Detention and Interrogation) Act 1995, s8(1)(b). The provisions of s8 were largely replicated by s85A with some minor changes which are not material to this case. At par[52] of the majority judgment, Gleeson CJ, Hayne and Heydon JJ held that "in the course of official questioning" marked out a period of time running from when questioning commenced to when it ceased. I will apply that. There is no material difference between the expression considered by the High Court and the expression I am considering. Director of Public Prosecutions v Cook [2006] TASSC 75 at par[33].
The accused had just been arrested. The asking by Sergeant Hanson of the whereabouts of the star picket was a question asked by an investigating official in connection with the investigation of the commission or possible commission of an offence. For that reason, official questioning for the purposes of the Act commenced when Sergeant Hanson asked that question. As the accused made the admission immediately after the question was asked, I conclude that the admission was made during official questioning for the purposes of the Act. There is no reason to conclude that official questioning had ended. The making of the admission was followed immediately by the administration of the caution and a further question was asked of the accused concerning what he wanted to say.
The admission of the accused was not responsive to the question concerning the whereabouts of the star picket. It was made in response to the statement of Sergeant Hanson that he was "under arrest for bashing a defenceless old man with a star picket". When that statement was made, official questioning had not commenced, but when the admission was made, official questioning had commenced. It is immaterial that the admission was not responsive to a question asked during official questioning. Kelly v R (supra) at par[45].
It follows that the evidence of the admission is not admissible unless one of the four exceptions in s85A(1) to the operation of the subsection, apply.
Counsel for the Crown conceded that the exception in par(a) does not apply because its terms have not been satisfied. There is not available to the Court an audio visual record of an interview with the accused in the course of which he made the admission.
It remains to consider whether any of the exceptions in pars(b), (c) and (d) apply.
Does the exception in s85A(1)(b) apply?
The first part of par(b) requires proof by the Crown on the balance of probabilities that there is a reasonable explanation as to why an audio visual record referred to in s85A(1)(a) could not be made. I will deal with that question when I consider par(c). Even if the first part is satisfied, the second part of par(b) is not satisfied. It requires that there is available to the Court an audio visual record of an interview with the accused about the making and terms of the admission, or the substance of the admission, in the course of which the accused stated that he made an admission in those terms or confirmed the substance of the admission.
Counsel for the Crown submitted that in the passage I cited from the interview of which an audio visual record was made, the accused confirmed the substance of the admission.
The Crown case is that the accused's admission that is in question was that he had bashed an old man with a star picket. In the passage cited, he did not confirm the substance of that admission. When it was suggested to him that he had given to a police officer a reason for hitting the man, his response was "I didn't fucken say shit to him". He added that he was not talking about the "old bloke" but "about them punks that were on top of Dallas". He said: "I was hitting 'em all mate not that old bloke. ... I'm telling you I did not swear to God say that to him". In view of those passages, the submission of Crown counsel is devoid of merit. The exception in par(b) has not been established.
Does the exception in s85A(1)(c) apply?
I did not understand counsel for the Crown to rely on the exception in par(c), but it should be considered. The first question it raises is the one raised by the first part of par(b), and that is, has it been proved on the balance of probabilities that there is a reasonable explanation as to why an audio visual record of the making of the admission to Sergeant Hanson could not be made? I find that it has.
It was reasonable for the police officers not to have an audio visual recorder with them and operating at the time of the arrest of the accused and shortly thereafter. It is not a usual practice that recording equipment of that kind is used in such circumstances, nor have I heard it argued that it should be. Further, the admission was made in response to a police officer's statement that the accused had been arrested for the reason given, and not in response to a question asked in the course of official questioning. The purpose of s85A is not to ensure that there are audio visual records of arrests. I do not regard it as practicable that they are recorded in that way. See s85A(2)(a).
I also find that the second part has been satisfied. There is a reasonable explanation as to why an audio visual record could not be made of an interview with the accused about the making and terms of the admission, or the substance of the admission, in the course of which he stated that he made the admission or confirmed the substance of it. There was an audio visual record made of an interview with him. In the course of that interview he was asked about the making of the admission, but he denied it. I am satisfied that the interviewing officers did all they reasonably could to obtain confirmation of the making of the admission. That the interviewing officer attributed to the accused that he had referred to the victim of his assault as kicking his brother in the head, rather than to bashing his brother, is immaterial. The accused's counsel sought to make no point concerning the difference.
I respectfully disagree with the view of Wright J in R v McKenzie [1999] TASSC 36 at par[8] that it is inappropriate to categorise an audio visual record of an interview at which an accused person declines to confirm an earlier admission as an audio visual record which "could not be made". Disapproval of that view appears to have been shared by Evans J in R v Julin [2000] TASSC 50 at par[18]. I agree with Evans J that the issue of whether a reasonable explanation has been established is a question of fact to be determined in all the circumstances of each case.
I conclude that the exception in par(c) has been satisfied.
Does the exception in s85A(1)(d) apply?
Counsel for the Crown submitted that in the terms of s85A(1)(d), the Court should be satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence. The exceptional circumstances to which he referred were that although the accused's admission was made during official questioning, it was only made a split second into the official questioning and even then, it was not made in response to the official questioning but in response to being told he was under arrest for bashing an old man with a star picket. Effectively, counsel's argument was that an admission made in such a circumstance was not intended to be rendered inadmissible by the section and that the section's principal rule of inadmissibility only operates here by way of a legal technicality. I think there is merit in the submission, but there is no need to determine it in view of my satisfaction concerning par(c).
Will it be unfair to the accused to admit evidence of the admission?
Counsel for the accused submitted that I should exercise my discretion under the Evidence Act, s90, and refuse to admit the evidence of the admission because it will be evidence adduced by the prosecution and, having regard to the circumstances in which the admission was made, it will be unfair to the accused to use the evidence.
Counsel pointed to the evidence that it was after 3.30am; that although a caution had been administered, Sergeant Hanson conceded that he had done it so quickly that it was doubtful that the accused either heard or understood it; that the accused was handcuffed; that before any questioning of the accused took place, after he was taken into custody, he was not informed by a police officer of his right to communicate with, or attempt to communicate with, a friend or relative and a legal practitioner as required by the Criminal Law (Detention and Interrogation) Act 1995, s6(1); and that the admission was made in response to a sternly asked question by Sergeant Hanson.
The accused carries the onus of satisfying the Court that the evidence should be excluded under s90 because it would be unfair to the accused to use the evidence. Em v R (2007) 232 CLR 67 at par[63]. I am not satisfied that it would be unfair to him for the following reasons.
That the events occurred after 3.30am is immaterial. The alleged crime was committed shortly before. There was no evidence that the accused was tired or, for some other reason, he would not have made the admission but for the time of day.
The evidence does not permit a finding that the accused was unaware of his rights to remain silent and to communicate with a relative or friend and a legal practitioner. In any event, the admission was made in response to a statement that he had been arrested for bashing an old man with a star picket, and not in response to improper questioning or questioning in circumstances that breached the Criminal Law (Detention and Interrogation) Act, s6(1).
That Sergeant Hanson may have spoken sternly to the accused when he reminded him of the fact of his arrest and the reason for it, creates no element of unfairness.
Nor does any unfairness arise out of the fact that he was handcuffed. It is not suggested that the police officers did not have reasonable grounds for arresting and handcuffing him. He took flight when the police arrived at the unit where they suspected him to be.
Should the evidence be excluded because its probative value is outweighed by the danger of unfair prejudice to the accused?
It was also submitted for the accused that the evidence should be excluded under the Evidence Act, s137, because it is evidence adduced by the prosecution and its probative value is outweighed by the danger of unfair prejudice to the accused.
So far as probative value is concerned, counsel for the accused pointed to the different evidence given by the respective police officers of what was uttered by the accused. On the basis of the evidence of Constable Hart, it will be open to conclude that the accused admitted striking the man with the star picket. On the basis of the evidence of Sergeant Hanson, a denial was made concerning that. It was submitted that as a result, the probative value of Constable Hart's evidence concerning the admission is low, in counsel's words, "very weak".
It was submitted that there is a danger of unfair prejudice to the extent that it outweighs the low probative value of the evidence. However, counsel was unable to explain what the danger of unfair prejudice was and I do not find it. All he submitted was that there was a danger that the jury might give undue weight to the evidence of Constable Hart.
I accept that the probative value of Constable Hart's evidence is reduced by Sergeant Hanson's evidence. However, my view is that like most questions of fact, it should be left to the tribunal of fact, the jurors, to determine what weight they should give to Constable Hart's evidence or whether they should accept it. I see no danger that they will decide the matter "on an improper, perhaps emotional, basis ie on a basis logically unconnected with the issues in the case" (Australian Law Reform Commission 26, vol 1, par[644]) or that the evidence "will be misused by the jury in some unfair way" (R v B D (1997) 94 A Crim R 131 at 139, 151).
Conclusion
For the reasons I have given the evidence will be admitted at the trial.
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