Tasmania v Cooke
[2023] TASSC 32
•17 March 2023
[2023] TASSC 32
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Tasmania v Cooke [2023] TASSC 32 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| COOKE, Zachary Anthony | |
| FILE NO: | 267/2020 |
| DELIVERED ON: | 17 March 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 30, 31 January, 1 February 2023 |
| JUDGMENT OF: | Wood J |
| CATCHWORDS: |
Criminal law – Procedure – Adjournment, stay of proceedings or order restraining proceedings – Stay of proceedings – Abuse of process – In general – Fair trial – Fundamental defect – Audio visual record of police interview with accused lost and unable to be recovered – Exculpatory statements that he acted in self-defence – Loss of record results in substantial disadvantage to defence – Ameliorated by evidence of accused's statements and directions to jury.
Criminal Code 1924 (Tas), s 46.
Jago v District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378,
applied.
Police v McLeod [2011] SASC 160; Police v Pakrou [2008] SASC 364; Police v Sherlock [2009] SASC 64;
R v Ulman-Naruniec [2003] SASC 437, 143 A Crim R 531, referred to.
Aust Dig Criminal Law [3054]
Evidence – Admissibility – Admissions – Informal admissions – Other matters – No audio-visual record of police interview – Interview comprised of admissions and exculpatory statements – Evidence of admissions are admissible – Exceptional circumstances in the interests of justice – Exculpatory statements admissible as context for the admissions – Mixed statements admissible in their entirety.
Evidence Act 2001 (Tas), ss 81, 85A.
Kelly v The Queen [2004] HCA 12, 218 CLR 216; Nguyen v The Queen [2020] HCA 23, 269 CLR 299,
referred to.
Aust Dig Evidence [1073]
REPRESENTATION:
Counsel:
State: J Greenwood Accused: N Edmondson
Solicitors:
State: Director of Public Prosecutions Accused: Grant Tucker Barrister & Solicitor
| Judgment Number: | [2023] TASSC 32 |
| Number of paragraphs: | 102 |
2 No 32/2023
File No 267/2020
STATE OF TASMANIA v ZACHARY ANTHONY COOKE
| EDITED REASONS | WOOD J |
| (Delivered Orally 17 March 2023) | |
| Application for permanent stay |
1 This is a ruling in relation to an application by the accused, Zachary Anthony Cooke, for a permanent stay of his trial, and an application by the State regarding the admissibility of evidence, the determination of which has relevance to the stay application.
2 The accused is charged with assault, the particulars being that on 31 January 2019 at Falls Festival, Marion Bay, he punched Theo Kaliminios to the face. The accused pleaded not guilty and the trial was listed to proceed this sittings. In advance of the trial date, the accused made the application for a stay of his trial on the basis that evidence had been lost. He had participated in an interview with police shortly after the incident, which contained exculpatory statements, and it has transpired that a recording of the interview is not available and cannot be played on his trial.
3 A voir dire has been held and evidence given by investigating police officers, Constable Joshua Tringrove and Constable Kristy Courto, as to the interview with the accused and the recording of it, and Constable Heidi Woodhead of the forensic unit as to the efforts that have been made to recover the recording. The accused and his former counsel, Ms Frances McCracken, gave evidence for the defence bearing on the implications of the lost evidence.
Lost evidence
4 The accused was apprehended by police shortly after the incident and was cautioned at the scene. He made some initial comments about the matter, including that he punched the complainant to protect the "girls".
5 He was taken to the Sorell Police Station and about two and a half hours after the incident, he participated in an interview. He was questioned by Constable Joshua Tringrove. Constable Kristy Courto was present and, largely, her role was to operate the recording equipment and take notes. The duration of the interview was approximately 22 minutes.
6 During the police interview, the accused admitted that he punched the complainant; he gave an explanation of what had happened and why he had punched the complainant; and he raised self- defence and made exculpatory statements, including that he felt threatened by the complainant.
7 The accused was described by police as calm and co-operative, and was said to respond to questions "unreservedly". He did not appear to be affected by drugs or alcohol.
8 The accused was cautioned at the commencement of the interview in the usual terms and was informed that the interview would be recorded and may be used in evidence against him.
9 The recording device that was used was a "camcorder" on a tripod. An SD card had already been placed in the recorder ready for the next interview. The camcorder was simple to use; a button was pressed to record, a red light indicated the device was recording, and at the end of the interview, the button was pressed to stop recording. At the end of the interview with the accused, Constable Courto stopped the recording, removed the SD card, placed it into a card reader, and downloaded that onto her tablet. When she did that, she could see a "thumbnail" depicting the accused from the
3 No 32/2023
recording on her tablet. Later, she burnt the downloaded interview onto a DVD. At some point, the
SD card was returned to the Sorell Police Station.10 In August 2021, approximately 20 months later, it was realised that a copy of the DVD only showed the beginning and end of the interview. This was followed up with investigating police who checked what had been downloaded originally, and it was discovered that all that had been downloaded was the first 19 seconds or so and then the last few seconds of the interview.
11 Meanwhile, the SD card had been reused and the record of interview, if it had been recorded in full onto the SD card, was lost.
12 Whether there was a fault with the recording, the downloading onto the tablet, or the burning of the interview onto the DVD is unknown.
13 I consider more could have been done to check, at intervals, that the camcorder was recording, to check the recording on the SD card successfully downloaded onto the tablet in its entirety, and that the DVD contained the entirety of the interview. However, at each stage, there was nothing to alert the police officers to a potential problem. There is no justified criticism that can be levelled at the police handling of the record leading to the loss of the evidence. There were also appropriate efforts to recover the evidence by the police forensic unit but they were not successful. Constable Heidi Woodhead of the digital evidence forensic unit received a request to recover the interview in July 2022. She gave evidence of efforts to retrieve the lost data from a DVD containing the file of the interview utilising certain software, however, such efforts were unsuccessful.
14 With that being said, more could have been done by Tasmania Police as an organisation. I find it astonishing that the SD card which recorded the interview was reused. It was the original record of the interview and a potential exhibit. The reusing of SD cards was evidently a practice that was in place. Constable Courto gave evidence that it was the responsibility of the police officer who does an interview to transfer the file from the SD card so that it is "free" and available to use for the next interview. It was suggested this practice of reusing SD cards is to save money. It need hardly be pointed out what a false economy that is, having regard to the hearing of this application and the costs and court time involved.
15 The Crown seeks to have admitted on the trial the statements of the accused, both inculpatory and exculpatory, that were made during the interview. This evidence would be given by the police officers who were present during the interview with the aid of notes taken by Constable Courto.
The notes of the interview
16 Constable Courto took notes during the interview. She explained her usual practice and the standard information she notes in her duty log book before the interview commences relating to the specifics of the interview, such as the police station; the officers conducting the interview; the person being interviewed, their date of birth, and their address; the time; the date; the time the interview concludes; and the duration of the interview, as well as matters covered at the outset of the interview such as the allegation, the caution, and the "right to communicate".
17 Constable Courto was asked whether she could recall any specific questions that Constable Tringrove asked during the interview, and she replied that she did not recall the exact questions asked, rather, she had noted down the answers the accused gave. She jotted down what he said in a shorthand method as a summary, not word for word. If she thought it was necessary, she wrote down what he said verbatim and put that in quotation marks. For example, at one point, the accused said that the complainant said, "What the fuck are you going to do about it, slut" and that was in quotation marks, signifying that was what the accused had said the complainant said. Constable Courto's notes were tendered on the voir dire.
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18 Constable Courto was asked in cross-examination about a statutory declaration she had made in which she described her notes as "an accurate reflection of answers given by the defendant … that I determined were relevant to the case and worthy of recording." She gave evidence that the notes she made were of the answers she believed were relevant in proving the assault. She included answers about why he assaulted the complainant, including things he said that may be relevant for any defences. She recorded that on one occasion, he said he felt threatened, but Constable Courto conceded, in fact, he may have said it more than once. She gave evidence that she considered she needed to be fair in writing down his responses "about the whole story".
19 Constable Tringrove also took some notes but these were very brief and for his own reference about things the accused said that he wanted to ask follow-up questions about. His notes were also tendered on the voir dire.
20 Constable Tringrove recalled that during the interview, he focused at some point on whether the accused had the opportunity to leave prior to the assault, and the accused agreed he did. However, he did not make a note of that, and neither did Constable Courto. When pressed, he said his recollection was of "the general gist of the interview" and that he did not remember specific words that the accused said.
21 Some of this evidence reveals the disadvantages faced by the defendant now that the interview has been lost. There was other evidence on the voir dire that is relevant to the question of unfairness and disadvantage arising from that lost evidence.
Evidence of disadvantage
22 The accused gave evidence on the voir dire. He said he was told at the outset of the interview that it "would be used in court if it went to court." He was asked why he participated in the interview and he said, "I wanted to give my version of the events at the time while it was fresh in my mind and for my own evidence." He explained that, because the police told him his interview would be used in court if it went to court, he was under the impression the interview would be his evidence. He was asked if he remembered what he told police and he said, "not as best as I did then." He remembered telling police that he "had to use self-defence for myself and my friends because he (the complainant) was extremely aggressive and come at us." He said what he raised with police was a "bit hazy now, it's been so long ago," but he said that he told the police the reasons for his actions and that he hit the complainant but it was in defence of himself and Bryony Dixon. When it was fresh in his mind, he provided detail about what happened, but he could not recall the whole thing now. What happened then was not now fresh in his mind and he struggled to remember some of the details.
23 Further, he gave evidence on the voir dire that what he told police was an honest account and it was the first time he had been in police custody. What he told police was the most accurate account of the version he could have given and he wanted to rely on that version in his defence as it was his best recollection of the events, the interview having occurred only two and a half hours after the incident.
24 If he had known that his interview was lost at a time when the events were fresh in his memory, he would have "given evidence" by going through what he remembered.
25 The accused's lawyer, Ms McCracken, gave evidence for the defence on the voir dire. She was informed about the problem with the interview around March 2022, after preliminary proceedings had been undertaken. Until then, Ms McCracken assumed the interview could be played, stating that she did not even consider it a possibility that the record of interview would not be able to be played at the trial. She explained that she could not recall a single case in the Supreme Court that had involved a record of interview that could not be played. She could recall just one Magistrates Court matter about 15 years ago involving "atrocious facilities" on Flinders Island.
5 No 32/2023
26 She gave evidence describing the potential value of a contemporaneous police interview and described her approach generally. After taking instructions, she would go through the summary of the interview and check that it accords with her client's recollection of what they told the police and whether they had told the police the truth. The significance of a record of interview that is consistent with instructions is that the interview may be used as a basis on which to build the defence case.
27 The consequence of having a record of interview in which the accused has given their version of events is that it may not be necessary for them to give evidence. There are risks involved in one's client giving evidence and being submitted to cross-examination, and those risks are avoided if they do not give evidence.
28 Ms McCracken explained that having provided advice about whether giving evidence at trial was a good idea, the decision would always be left up to the client, acknowledging there was no guarantee that her advice would be followed. It was her view that in a case where a client has not given a record of interview and it is intended to raise self-defence or defence of another, the client is almost obliged to give evidence because they need to raise that defence and put their version on record.
29 She was asked a hypothetical question about the advice she would give to a hypothetical client if she was informed that the police interview could not be played. She began her response by saying that one of the instances where she would almost always suggest a client does a record of interview is if the allegation is an act of violence and the client was acting in self-defence or defence of another. If they raise self-defence in a plausible way during the interview, that can be enough for them not to give evidence. This can be beneficial because, as she had explained earlier, it can be a good thing for them not to have to give evidence in court and be cross-examined. If she was informed the interview could not be played in circumstances where someone had not yet appeared in court and it was still close in time to the incident, she would talk to the police about whether her client could come in and undertake a further record of interview, and talk to her client about whether they would feel comfortable doing that and, if so whether they would like her to sit in with them, as well.
30 Ms McCracken gave evidence that her advice in relation to a police interview would depend on the circumstances. If it was after her client had already appeared in court or entered a plea, then they may have received "disclosure". In those circumstances, it could be suggested an accused had amended their responses in the record of interview because they were aware of the case against them. If there had been preliminary proceedings, and if her client had seen some of the witnesses give evidence and be cross-examined in court, then a similar suggestion could be made, "down the track" it opens up for criticism. There is another risk about an interview after disclosure and preliminary proceedings; the police might ask questions based on what has been said in court, rather than a narrative untainted by what has happened in court and without an awareness of the potential defence. This awareness and knowledge might lead to cross-examination of an accused in an interview, and such an interview is "a more risky endeavour than if it were prior to the prosecution having any kind of insight in relation to what your defence is".
31 In a case where she did not advise her client to give another interview then she would be preparing her client to give evidence in court. She would consider that hypothetical client to be at a disadvantage.
General principles for applications for stay
32 The general principles regarding the remedy of a permanent stay of proceedings are well- settled. A permanent stay of a criminal prosecution is a radical discretionary power. It involves the court refusing to exercise its jurisdiction to hear and determine the issues. It is used "only in most exceptional circumstances": Mason CJ in Jago v District Court of New South Wales (1989) 168 CLR
6 No 32/2023
23 at 31. His Honour went on to state at 33 that in safeguarding the interests of the accused, the
"touchstone" in every case is fairness. Further:"The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial…[cases cited omitted]."
33 And, at 34, Mason CJ stated:
"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton, at p 111, per Wilson J." (Barton v The Queen (1980) 147 CLR 75.)
34 In Jago, Brennan J observed at 47 that obstacles in the way of a fair trial are often encountered in administering criminal justice. His Honour stated that unfairness to a party can be addressed by measures open to the court such as controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence, and especially by directions to the jury designed to counteract any prejudice which the accused may otherwise suffer.
35 Brennan J highlighted the interest of the community in the administration of criminal justice to guarantee peace and order in society. His Honour stated at 50:
"The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion in the public mind."
36 Toohey J at 71-72, referred to notions of abuse of process and fair trial as not distinct and as bearing on each other. There could be cases of delay where the prejudice to an accused is so manifest that it cannot be corrected by evidentiary rulings and directions to the jury regarding how they should approach the evidence adduced, and where a stay of proceedings is the only remedy that meets the situation.
37 The concept of abuse of process cannot be restricted to "defined and closed categories" and cannot be exhaustively defined: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, 226 CLR 256 per Gleeson CJ, Gummow, Hayne and Crennan JJ at [9], [14]-[15]. The majority explained at [14]-[15] that:
"Notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment.'"
38 The power to grant a permanent stay may be exercised as and when the administration of justice demands: Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 394 quoting Gaudron J in Jago at 74. The grounds upon which a permanent stay may be granted are not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the affected party being afforded a fair hearing.
39 As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner at 392-393, the inherent power of a superior court to stay proceedings on the ground of "abuse of process extends to all those
7 No 32/2023
categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness." See also, Subramanian v The Queen [2004] HCA 51, 79 ALJR 116 per the court at [26].
40 The test for the court to order a stay of proceedings may be formulated as whether the court is satisfied that the continuation of the proceeding would involve unacceptable injustice or unfairness, or whether the continuation of the proceedings would be "so unfairly and unjustifiably oppressive" as to constitute an abuse of process: Walton v Gardiner at 392. It is worth noting that the test is not whether the continuation of the proceedings could constitute unacceptable injustice or unfairness, but whether it would do so. In this task, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial: Williams v Spautz (1992) 174 CLR 509 at 519.
41 It is plain that the power to stay proceedings is not exercised because in some respect the proceedings will be unfair from the defendant's point of view. A fair trial does not mean an accused could not have been better placed than they were at their trial. In Police v Sherlock [2009] SASC 64 at [69], Doyle CJ explained there is often some aspect of the proceedings which may be described as unfair, in a broad sense, from the defendant's point of view. Rather, the legal concept of a fair trial is a much narrower one, and a fair trial is a trial according to law, the court exercising such powers as it has to make the trial fair: Sherlock at [69].
42 Thus, it is not the function of a court to try to achieve some kind of equality as between the parties, or some kind of fairness in the broadest sense: Sherlock at [70]. Doyle CJ referred to Sedmak v Police [2008] SASC 307 and his own comments at [28]–[29] in which he gave examples of unfairness from the defendant's point of view which might occur in a criminal trial that would not justify the exercise of a power to stay proceedings, namely an important witness might die or fall ill, or be unavailable when the matters comes to trial, or one party might have better quality representation than the other.
43 In a similar vein, Bleby J in R v Ulman-Naruniec [2003] SASC 437, 143 A Crim R 531 said
at [15]:
"As to whether or not a permanent stay of the proceedings should be granted, it is not merely a matter of asking whether or not the accused can now have a fair trial. Unfairness to an accused is but one aspect of whether an abuse of process is brought about by the continuation of prosecution proceedings. Furthermore, unfairness comes about in a variety of ways and in varying degrees. Merely because a trial may be described as being 'unfair' for one particular reason does not necessarily require that it be stayed as an abuse of process. There will often be other means of rectifying the unfairness."
See also Besanko J at [70]–[73].
44 One of the recognised categories for a possible abuse of process remedy is where material evidence has been lost or is not available. This may mean the prosecution cannot prove its case and so the case is "foredoomed", or that the accused has been denied an opportunity to mount a defence: R v Ulman-Naruniec and the examples referred to in the judgment of Bleby J at [34]–[36]. I have been referred to a number of decisions where an application for a stay was made because evidence was destroyed or no longer available: R v Ansell & Bradbury [2022] QDC 148; Sherlock (above); Police v Pakrou [2008] SASC 364; Duncombe-Wall v Police [1998] SASC 6754; R v Ulman-Naruniec.
45 These authorities provide guidance on this category of lost evidence. In Police v Pakrou, CCTV footage relevant to the complainant's identification of the perpetrator was not available at trial in a case of strong identification evidence. Kourakis J (as he then was) was concerned with the question on appeal of whether the discretion had been properly exercised in granting the stay
8 No 32/2023
application and made comments at [60]–[74] regarding considerations relevant to an application to stay criminal proceedings for an abuse of process. These comments were endorsed by Doyle CJ in Police v Sherlock at [71] (with whom Sulan and Kourakis JJ agreed) and by Blue J in Police v McLeod [2011] SASC 160 at [99], [102]. For present purposes, I highlight the following considerations which give content to the notion of forensic unfairness arising from lost or destroyed evidence:
• Courts have always made findings of fact on less than all of the available evidence. • It is not an abuse of a court's process, without more, to ask it to make findings of fact on less than all of the evidence that might possibly have been secured and brought before it. • The procedural and substantive rules of the common law trial processes are designed to meet the practical reality that findings of fact will often be made on imperfect evidence. • Exceptionally, there may be cases where an "unacceptable" risk of miscarriage of justice subsists despite the protections referred to. Considerations which will determine whether a risk of miscarriage is acceptable or not are the nature and strength of the evidence that will be called; that the degree of risk that is acceptable may vary from case to case as much will depend on the nature of the offence and reasons for the loss of the evidence; and importantly, the public interest that prosecutions for serious offences that have at least a reasonable evidential foundation are brought to trial. Exceptional circumstances will only exist where the judicial function "cannot be acceptably performed". • The lost opportunity of an accused to present evidence or test the prosecution case should not be considered in isolation and is not determinative. The critical issue is whether the court's capacity to fairly assess the evidence which will be led has been so compromised that there is an unacceptable risk of a miscarriage of justice. Those cases will be rare and exceptional. 46 It can be seen from the authorities that it is not enough for the accused to show merely a possibility that some of the lost material may be of some assistance to the defence. In a case involving deficiencies in an investigation, such deficiencies may be exploited before the jury, and, if appropriate, may be the subject of comment by the trial judge: see, for example, Penney v The Queen [1998] HCA 51, 155 ALR 605 per Callinan J, with whom McHugh, Gummow, Kirby and Hayne JJ agreed, at [17].
47 In Police v McLeod at [99] and [102], Blue J developed a two-stage approach which may be of assistance where the abuse of process or unfairness is said to arise from the loss or destruction of evidence. This is a sequenced approach to the principles developed by the High Court and courts from other jurisdictions I have referred to. The first part of the test involves a consideration of the lost evidence and matters such as whether the evidence is material and is capable of affecting the outcome of the case, whether it is exculpatory of the defendant, and whether the unavailability of the evidence is the responsibility of the prosecution. The second stage of the test involves a balancing of factors that bear on public interest in criminal proceedings being brought to trial against unfairness to the accused by reason of the loss of evidence.
48 Having identified these matters of principle and approach, I do not intend to discuss the facts of the cases concerning lost or destroyed evidence. That exercise would be illustrative only and, in the end, each case turns on its own facts.
49 Having considered the principles, the ultimate issue in this case is whether the loss of the evidence is so significant that, notwithstanding the application of procedural and substantive rules of
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the trial process, an unfair trial would result. If it is, then the Court may exercise its discretion to stay
the trial.
Assessing the prejudice to the defence
50 The defence contends that the loss of the police interview meets the test for a permanent stay of proceedings. It is contended that to proceed on the indictment will result in both an unfairness to the accused that cannot be remedied by this Court, and a grave injustice to the accused that would bring the Court into disrepute.
51 It is appropriate to commence by considering the extent of the disadvantage to the accused if his trial proceeds. This consideration must take into account the issues at trial, as well as the importance of the lost evidence to the defence case and how the accused will be placed without that evidence.
52 Central to the disadvantage is that the defence the accused intends to rely upon at his trial is self-defence or defence of another, which was raised in the lost police interview. Section 46 of the Criminal Code governs this defence and provides:
"46 Self-defence and defence of another person A person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use."
53 The task confronting the jury in a case where s 46 is relied upon involves a number of considerations revolving around an accused person's state of mind. It involves focusing on why the accused acted as he did in using force; that is, whether he was acting in defence of himself or another person, or for some other reason, in which case the provision would not apply. The jury need to assess the circumstances as the accused believes them to be. Then, once those subjective issues have been considered, the jury needs to assess whether the force used by the accused was reasonable. This objective question of the reasonableness of the force used is considered in the context of the circumstances as he believes them to be. As can be seen, pivotal to these considerations is the accused's state of mind and his belief as to the circumstances. In R v Walsh [1991] TASSC 30 at [21], Slicer J stated:
"The test is a subjective one, being whether the accused really believed there was a situation requiring the use of force in self-defence. Thus the jury is required to place themselves in the position of an accused and ascertain his belief as to the element of danger."
54 The evidence on the voir dire establishes that the notes of the interview reveal the substance of what the accused told police. The notes record his account about the sequence of events, the complainant's conduct, that the complainant was acting "extremely aggressively", and that the accused felt he had to defend himself and his friends. His account is exculpatory in that it gives content and detail to a defence under s 46.
55 The account to police contains inculpatory statements, namely admissions against his interest, as well as exculpatory explanation. The combined operation of s 81(1) and (2) of the Evidence Act (Tas) 2001 means that exculpatory aspects of a mixed statement may be admissible:
"81 Hearsay and opinion rules: exception for admissions and related
representations
(1) The hearsay rule and the opinion rule do not apply to evidence of an
admission.10 No 32/2023
(2) The hearsay rule and the opinion rule do not apply to evidence of a
previous representation –
(a) 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.
56 As a mixed statement of admissions and exculpatory statements, the interview is admissible in its entirety: Nguyen v The Queen [2020] HCA 23, 269 CLR 299 at [20]-[23]. Moreover, it should be admitted in its entirety and is not a matter of prosecutorial discretion, or dependent on a forensic decision by the prosecutor; this is a matter of prosecutorial fairness guided by the overriding interests of justice: Nguyen at [33]-[45].
57 The conclusion of the court at [46] speaks to the potential importance of an accused's record of interview and is particularly apposite to the circumstances of this case:
"The recorded interview of the appellant provided his detailed account of what occurred. He was challenged a number of times by the interviewing police officer but his account remained consistent. It was not suggested that his account could be described as demonstrably false because it differed from the account of others. It provided the foundation for a claim to self-defence and the basis for questioning Crown witnesses by defence counsel. It is evident that the appellant believed that what he was to say in the interview would be placed before the court. The decision not to adduce it was admittedly a tactical one, to favour the Crown. It did not accord with the prosecutorial obligation respecting the presentation of the Crown case and disadvantaged the appellant."
58 Thus, the entirety of the accused's interview with police is admissible and should be admitted
on his trial.
59 It follows that the defence was entitled to assume the State would tender the interview. Given the evidence of Ms McCracken and, indeed, the experience of this Court, the risk of it being lost was so remote that it was reasonable for the defence to proceed on the basis that the accused's account would be presented at trial.
60 Furthermore, the accused had an expectation that his interview would be part of his evidence on the trial. He was informed at the outset that the interview would be recorded and may be used against him. He thought, correctly, that a record of his interview could be relied upon by him in his defence.
61 Now that the interview and his responses are lost and cannot be recovered, the question is what the disadvantage to him will be at his trial, and in light of the exceptional nature of the remedy sought, what the extent of that disadvantage is.
62 The accused's lost interview is said to be vitally important to his defence. It was his contemporaneous account of events and of his relevant belief, provided within three hours of the incident. On the evidence, it can be accepted that, as in Nguyen and said at [46], it "provided the foundation for a claim of self-defence and the basis for questioning Crown witnesses by defence counsel".
63 If the interview had been in existence, the jury would have had an opportunity to assess his demeanour and make findings about his credibility and reliability. Interviewing police officers described him as calm, not intoxicated, and unreserved in his responses. These matters speak to the reliability of his account and would have been able to be seen by the jury first-hand.
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64 The defence argument is that the jury have lost the opportunity to assess the accused's credibility, and in a trial where self-defence is raised, the accused's credibility is of vital importance. The argument proceeds on the basis that the accused gave a credible account in his interview. It may be noted that the evidence Ms McCracken gave about the value of an interview presupposed that it was a credible account. As a general proposition, this is supported by the weight of the evidence on the voir dire and there is no evidence to suggest to the contrary. It must be acknowledged, though, that issues of credibility are questions for the jury, and the jury's assessment of the interview and what the jury may have detected from his demeanour is in the realms of the unknown. We do not have the interview and neither counsel have seen it. It is at least possible that the jury's assessment may not have been favourable, or they may have attached different degrees of credit to different parts of it (borrowing the words of Nguyen at [22].) The jury may have found in the accused's account some falsity or inconsistency in his responses that will not now be detected because the evidence is lost. Acknowledging these matters, it is accepted that the jury may well have found during the interview that the accused gave an account which was credible in its delivery, in the detail of his responses, and in his demeanour.
65 The accused's account of his state of mind and belief is crucial evidence to his defence, and only he can give that account. He can give evidence on his trial but his memory of these events, now three years ago, is "a bit hazy". It is reasonable to assume that he does not recall the same level of detail that he was able to recount on the night of the incident.
66 It can be seen that if the interview had not been lost, he may have been advised by his counsel to rely on that account and not give evidence. Now, because the evidence is lost, there may be an imperative for him to give evidence at trial that would not have existed otherwise. It is argued for the accused that he has lost the forensic advantage of maintaining his right to silence at trial. Consequently, he is exposed to a risk that he may not otherwise have been exposed to of having his account undermined in cross-examination. It should be acknowledged that there may be other developments at trial that would give rise to a need for him to give evidence when it was thought that that would not be necessary. However, it is accepted that given the prominent question of his state of mind, he now faces an imperative to give evidence which would not have existed if the lost interview was able to be tendered on his trial.
67 The acceptance of this proposition does not mean that this state of affairs, arising from the lost evidence, infringes his right to silence. The accused, like every accused, has an immutable right, but there are any number of scenarios in a trial where there will be imperatives and practical considerations for and against the exercise of that right. For example, the admission of contested evidence might put an accused in such a position. The fact that an accused might, by reason of such a scenario, consider himself or herself forced to give evidence does not mean the right to silence has been undermined.
68 The disadvantages to the defence arising from the lost police interview can be offset if he gives evidence at the trial of the incident and matters bearing on a defence under s 46. The evidence on the voir dire demonstrates that the defendant is able to give evidence of the incident if he chooses to because he has a memory of the incident. However, his evidence at trial will not be viewed as being as reliable as his interview would have been because of a number of factors.
69 The first factor is the obvious point about the time that has lapsed; the accused's memory is now affected by that lapse of time, and there is a risk of inaccurate recall and reconstruction. Unfortunately, due to no fault of his own or his counsel, he did not know the evidence was lost for a significant time, and in the period while his memory was fresh, he did not take steps to record his memory of events.
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70 The second factor is the circumstances of his account at trial which affect whether his account at trial would be regarded as being as credible and persuasive compared with an account given during his police interview. His evidence would be given in light of disclosure of police statements and when it can be suggested that it has been tailored to fit the evidence of witnesses given in preliminary proceedings; and in light of the trial evidence that supports self-defence. Even if Crown counsel are constrained from suggesting that, the jury are likely to see his evidence as "well informed". By contrast, his account in his interview was uninformed, given at a time when he did not know what others would say, and demonstrably untainted. At the time he participated in the police interview, he did not have the benefit of any other account in formulating his responses.
71 The accused has lost more than an exculpatory contemporaneous account; he has lost an untainted account. If he gives evidence on the trial, it will be, by contrast, post-disclosure, post- preliminary proceedings, and post-evidence on the trial.
72 In a number of significant respects, his account in the interview, as recorded in the notes of Constable Courto, coincides with statutory declarations of some of the Crown witnesses to be called at the trial. There are striking examples of consistency such as comments said to have been made to the young women in the accused's company. This is not a case where the account to police may be regarded as demonstrably false with reference to the evidence of eye-witnesses. The prejudice associated with the lost interview is due not only to the relevance of the evidence, but also that it is an account that may well have been accepted by the jury as an honest and accurate account of events.
73 His evidence at trial as tainted evidence, in the sense discussed above, will derive less support from external evidence that is consistent with his account compared with his police interview. In this sense, external support for his account at trial loses its force as demonstrating the truthfulness and reliability of his account. He can be said to have tailored his evidence in court to fall in line with that support.
74 The Crown submissions point to the evidence of Crown witnesses which raises self-defence and evidence which suggests the complainant was confrontational and aggressive, and contend that because of this evidence, his lost interview is not vital. It is said that this is not a situation where the only evidence of self-defence is the video record of interview and, therefore, the probative value of the interview is less than what it otherwise would have been. Certainly, it is accepted that there is evidence from Crown witnesses that is sufficient to raise self-defence as an issue and to discharge the accused's evidentiary onus in that regard. This has significance because it means the State will have the onus of disproving that the accused acted in self-defence and the burden of disproving that beyond reasonable doubt. However, the evidence from Crown witnesses does not deprive the record of interview of its probative force. Evidence does not gain or lose probative force on a trial depending on whether there is evidence from another source on the same issue. It is worth noting that the jury may not accept that other evidence. In any event, as we have seen, the issues at trial will include the accused's state of mind, and while evidence of his conduct bears on this issue, his state of mind and what he believed is a matter that only he can speak to, and so what he said about that during his police interview may assume significance on his trial.
75 I regard the loss of the evidence of the record of interview as a significant blow to the defence. The accused is placed in a position of substantial disadvantage, compared to his position if the interview was still in existence. The loss is of a contemporaneous, untainted, and an apparently reliable account that happens to coincide in certain key respects with the evidence of Crown witnesses, giving rise to an inference that that is because the accused's account is the truth of what happened.
76 I turn to consider whether there are available measures and remedies which could address the disadvantage. The Crown says there is and that in this case, an obvious remedy is to allow evidence
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to be admitted of what the accused said to police in his interview. The admissibility of this evidence
is in issue.
Admissibility of evidence of accused's statements to police
77 Constable Courto's notes are not admissible because of the effect of s 86(2) of the Evidence Act. The Crown would nonetheless consent to their admission as a matter of fairness to the accused. However, the defence maintains that on a stay application, the prejudice should be judged by reference to the conduct of a trial according to law and evidence that is strictly admissible, not by reference to what may be agreed in order to minimise prejudice.
78 The Crown argues that, aside from the notes, evidence of what the accused said in his interview is, in fact, admissible as the police officer's recollection of his admissions, providing it is not excluded under s 85A. If not excluded under that provision, the rest of his answers may be admitted as context for his admissions because they are "reasonably necessary to refer (to) in order to understand the admission": s 81(2)(b).
79 As a result, Constable Courto would be able to give evidence of what the accused said. She would be permitted to refresh her memory from her notes under s 32(2)(b). The notes would qualify as written by the witness when the events recorded in it were fresh in her memory: s 32(2)(b)(i). The question is whether the evidence would be excluded under s 85A. If the evidence is excluded, then the gate to admitting the responses in the interview is closed.
80 Generally, the admissions would be excluded because an audio-visual record of an interview was not made. It may be admitted if there is a reasonable explanation as to why such a record could not be made, or if there are exceptional circumstances which would justify the admission of evidence in the interests of justice.
| 81 | Section 85A provides: "85A Admission in serious offence | |
|
(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:14 No 32/2023
(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."
82 There are statutory definitions that are relevant:
"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;
serious offence means –
(a) in the case of a defendant of or over the age of 18 years, an indictable offence that cannot be dealt with summarily without the consent of the defendant; and
(b) in the case of a defendant under the age of 18 years, any indictable
offence for which the defendant has been detained;
official questioning means questioning by an investigating official in connection with
the investigation of the commission or possible commission of an offence."
Section 85A applies to the police interview in this case. Here, we are concerned with "official questioning" regarding a "serious offence", during which "admissions" were made.
83 The rationale for the exclusion of admissions unless there is available an audio-visual record was discussed in Kelly v The Queen [2004] HCA 12, 218 CLR 216 per Gleeson CJ, Hayne and Heydon JJ at [22]–[29] and per McHugh J at [96]; Director of Public Prosecutions v Cook [2006] TASSC 75, 166 A Crim R 234 per Blow J (as he then was) at [75]; Tasmania v B [2012] TASSC 38, 227 A Crim R 146 per Blow J (as he then was) at [10].
84 In State of Tasmania v Seabourne [2010] TASSC 35, I gave consideration to s 85A(1)(b). I highlighted at [43] that there must have been a reasonable explanation for why the record could not be made. As noted, subs (2) provides guidance as to what amounts to a "reasonable explanation" and that, clearly, the court may take into account practical considerations, including those set out at (a)– (d). Subsection (d) is relied upon here in that the equipment used to make an audio visual record of the interview malfunctioned.
85 I am not satisfied, however, that the equipment malfunctioned, or even that a record was not made. The words of s 85A(2)(d) refers to the malfunctioning of "equipment used to make an audio- visual record of the interview". There is a distinction between making or creating the record and copying the record onto another device. According to the evidence, it is entirely feasible that the interview was made and recorded onto the SD card but that there was a problem with the downloading
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or copying of that record, after which the original record was deliberately deleted. I am not satisfied that there is a reasonable explanation as to why an audio-visual record of an interview could not be made.
86 By virtue of s 85A(1)(d), the admissions are admissible if the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.
87 The interests of justice include the accused's interests in a fair trial and the community's interest in seeing people brought to trial. Plainly, it is in the interests of justice that his admissions to the allegation of punching the complainant be admitted. This is not a case where there is any suggestion that these admissions were not made. It is uncontentious that it is in the interests of justice that his exculpatory statements be admitted, as well. While the concept of a fair trial cannot be defined, there can be no doubt that fairness encompasses the presentation of all available, cogent, and admissible evidence: Nguyen (above) at [36]–[40]. Undoubtedly, the evidence is cogent. Furthermore, this is a case where the omission of the evidence may work an unfairness to the accused.
88 The argument for the accused seems to involve a proposition that in determining the stay application and whether there is an incurable injustice, the accused's interests in having his exculpatory statements admitted should not be taken into account because admitting the statements provides a solution which weakens his case for a stay of proceedings. This is described as a "further unfairness". I am not satisfied that the proposition is sound. A stay is only in the interests of justice if there is no other remedy available to the court. It is a remedy of last resort.
89 In assessing the interests of justice, it is appropriate to identify the consequences for the defence if what was said by the accused during his interview, the admissions, and the context are admissible, and the police officers are able to give an account reflecting the notes that were taken and, if necessary, with an opportunity to revive their memories from those notes. This may take the form of the State leading the evidence of what was said by the accused, or the defence being able to cross- examine the interviewing police officers about what was said. The consequences for the defence if what the accused said during his interview is admissible, would be as follows:
• It appears from the voir dire evidence, as noted above, that the jury would have the substance of the account given by the accused during the interview. There would be evidence of detailed responses from the accused which give content to an assertion that he punched the complainant acting in defence of himself and the young women in his company. This includes statements he made about his state of mind at the material time. • The jury would have evidence of his account of the events and, in particular, his account of the complainant's conduct in acting aggressively. • The jury would have a contemporaneous account that was given when the accused was not informed about what other witnesses would say. It would be evident that his account coincides with that of some of the Crown witnesses. 90 Admitting the evidence may not be enough to mean the accused's counsel at trial would advise that he need not give evidence. Further, the account given at trial would likely lack the force of an audio-visual record of the complete account given by the accused during his police interview.
91 Another question which arises, bearing on the interests of justice and the application of s 85A(1)(d), is the reliability and accuracy of the evidence absent the recording. Having regard to the evidence, Constable Courto's notes reflect the substance of what was said and, in some instances, record verbatim what the accused recounted. They are not accurate in all the detail of the accused's responses, and they do not record the questions that were put to the accused.
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92 These were exceptional circumstances. The loss of the interview is extremely rare and beyond the contemplation of defence counsel. Moreover, the circumstances were exceptional in that the mixed statements are the foundation for and provided information that is central to the defence case. Without the account, the jury would be unaware of the aspects where the accused's account aligned with the account of Crown witnesses. It is a case where it is plainly in the interests of justice to admit the evidence. I am satisfied of the criterion in s 85A(1)(d).
93 This conclusion also resolves the application of s 90.
Other available measures
94 There are other measures that can be put in place at trial to address the disadvantage to the accused. I consider some of these now, without being exhaustive. At trial, I will invite counsel to make submissions as to other steps and measures that might be taken to ameliorate the disadvantage to the accused.
95 The jury can be informed, by evidence or agreed fact, about the loss of this evidence, the rarity of the circumstances, and that the accused was unaware the evidence was lost until a late stage of the proceedings. The jury may be informed about the limitations of the notes in terms of their accuracy, the purpose of the notes, and that they were not meant to be a complete and accurate record of the responses. A direction to the jury could draw to their attention that there is no record of the questions and highlight that questions can be important in understanding the meaning of an answer.
96 A direction under s 165(1)(f) relating to the unreliability of the kind of evidence involving notes of oral questioning that have not been signed or acknowledged by the accused would also seem appropriate. This direction would be tailored to the facts of this case and inform the jury of the matters that may cause the evidence to be unreliable.
97 There would, of course, be the standard directions concerning the onus of proof both generally and, with respect to the elements of self-defence, that it was not for the accused to prove his account was true.
98 The trial judge may properly insist on care in the giving of evidence concerning the accused's responses during the police interview. There was evidence from Constable Tringrove which seemed to summarise the effect of or characterise the interview and, in doing so, put a gloss on it. An example of this was his recall of the "gist" of the interview that the accused said he had an opportunity to walk away. Evidence that is no more than the impression of the police officers should be excluded.
Conclusion
99 I conclude that the admission of the evidence I have identified and directions to the jury would reduce the disadvantage to the accused arising from the loss of the audio-visual record of his interview. They do not restore him to the position he would have been in if the evidence had not been lost, and he will experience disadvantage at his trial in a relative sense.
100 However, the disadvantage is not such as would render his trial unfair and is not the kind that might enliven the power to stay proceedings. We are not left with a "fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do can relieve against its unfair consequences".
101 There are potential cases where the loss of an interview could have such a drastic impact on the defence that a stay would be required. This is not such a case. Here, the defendant can give evidence if he chooses to; his memory of the incident is imperfect but it does not appear to be significantly compromised; the substance of his contemporaneous and untainted account will be before the jury; and, whilst imperfect, his memory would enable him to challenge the evidence of the
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interviewing police officers about statements attributed to him on matters of substance. The Court may warn the jury about the potential unreliability of the recall of the police and the limitations of the notes on which that recall is based. It is my conclusion that the procedural and substantive measures available to the trial judge adequately address the disadvantages to the defendant resulting from the loss of the evidence of his police interview.
102 The application for a permanent stay is refused. Evidence of the accused's mixed statements in the police interview are admissible.
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