The State of Western Australia v Yarran
[2014] WASC 1
•17 JANUARY 2014
THE STATE OF WESTERN AUSTRALIA -v- YARRAN [2014] WASC 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 1 | |
| Case No: | INS:119/2013 | 10 DECEMBER 2013 | |
| Coram: | SIMMONDS J | 17/01/14 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application to permit evidence to be led dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA ROBIN CHRISTOPHER YARRAN |
Catchwords: | Criminal law Admissions and confessions Audiovisual recording of admissions Accused refusing to participate in recorded interview Evidence he made statement not audiovisually recorded to police questioning him being a statement of kind made by alleged offender to victim Admissibility of evidence Section 118 and s 155 of Criminal Investigations Act 2006 (WA) |
Legislation: | Criminal Code (WA), s 570D (repealed) Criminal Investigation Act 2006 (WA), s 118, s 155 Criminal Procedure Act 2004 (WA), s 98 |
Case References: | Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 Floyd v The State of Western Australia [2013] WASCA 33 The State of Western Australia v Yerkovich [2004] WASC 62 Wells v The State of Western Australia [2013] WASCA 124 Wright v The State of Western Australia [2010] WASCA 199 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
ROBIN CHRISTOPHER YARRAN
Accused
Catchwords:
Criminal law - Admissions and confessions - Audiovisual recording of admissions - Accused refusing to participate in recorded interview - Evidence he made statement not audiovisually recorded to police questioning him being a statement of kind made by alleged offender to victim - Admissibility of evidence - Section 118 and s 155 of Criminal Investigations Act 2006 (WA)
Legislation:
Criminal Code (WA), s 570D (repealed)
Criminal Investigation Act 2006 (WA), s 118, s 155
Criminal Procedure Act 2004 (WA), s 98
Result:
Application to permit evidence to be led dismissed
Category: B
Representation:
Counsel:
Prosecution : Mr M G Hunter
Accused : Mr A L Troy
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Putt Legal
Case(s) referred to in judgment(s):
Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138
Floyd v The State of Western Australia [2013] WASCA 33
The State of Western Australia v Yerkovich [2004] WASC 62
Wells v The State of Western Australia [2013] WASCA 124
Wright v The State of Western Australia [2010] WASCA 199
- SIMMONDS J:
Introduction
1 These are the reasons for decision on an application (the application) under Criminal Procedure Act 2004 (WA) s 98 for an order to permit the admission of evidence of certain admissions (the admissions) for the purposes of a forthcoming criminal trial.
2 The application is for:
An order that at the trial of the accused the State be permitted to lead evidence of the unrecorded admissions alleged to have been made by the accused to Detective [sic Police Constable] Jack [William] Moore [Moore] and Detective David Hackett [Hackett] on 10 April 2013 (contained at paragraphs 28 - 33 of the statement of [Moore] dated 3 June 2013 [the Moore witness statement] and paragraphs 17 - 22 of the statement of [Hackett] dated 3 June 2013 [the Hackett witness statement]).
3 This decision follows a hearing of the application at which both Moore (by video link from Roebourne) and Hackett appeared and testified.
4 The application raises questions of the application of two of the exceptions to the rule for the inadmissibility of unrecorded admissions contained in Criminal Investigation Act 2006 (WA), s 118(3), on both of which the state relied.
5 The relevant provisions of the Criminal Investigation Act are s 118(3), the inadmissibility rule which appears with a reference to two classes of exception; the first relevant exception, in s 118(1) 'reasonable excuse' (c), read with 'admission'; and the second relevant exception, s 155.
6 I set out s 118 in relevant part and s 155, as follow:
118. Admission in serious case inadmissible unless recorded
(1) In this section -
admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;
…
reasonable excuse, for the absence of an audiovisual recording of an admission, includes -
…
(c) the suspect did not consent to an audiovisual recording being made of the admission;
…
…
(3) On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -
(a) the evidence is an audiovisual recording of the admission; or
(b) in the absence of an audiovisual recording of the admission -
(i) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii) the court decides otherwise under section 155.
155. Inadmissible evidence, court may allow admission
(1) This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2) The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3) In making a decision under subsection (2) the court must take into account -
(a) any objection to the evidence being admitted by the person against whom the evidence may be given;
(b) the seriousness of the offence in respect of which the evidence is relevant;
(c) the seriousness of any contravention of this Act in obtaining the evidence;
(d) whether any contravention of this Act in obtaining the evidence -
(i) was intentional or reckless; or
(ii) arose from an honest and reasonable mistake of fact;
(e) the probative value of the evidence;
(f) any other matter the court thinks fit.
(4) The probative value of the evidence does not by itself justify its admission.
8 I then turn to the admissions to which the application relates, including the circumstances under which the admissions were made.
9 I then describe and apply the law applicable to the exception in Criminal Investigation Act s 118(3)(b)(i), read with s 118(1) 'reasonable excuse' (c), the only branch of that (inclusive) definition on which the state relies.
10 I next describe and apply the law applicable to the exception in Criminal Investigation Act s 155.
11 The final section of these reasons is my overall conclusion and call for orders.
Background
12 The following matters are either common ground for the purposes of the application between the parties or unchallenged evidence given by Moore and Hackett.
13 By prosecution notice SG 57 of 2013 the accused is charged that on 8 March 2013 he stole from the complainant with violence $250 the property of the complainant; and that the accused was armed with a dangerous weapon, namely an extendable baton; and that he did bodily harm to the complainant. This alleged aggravated armed robbery occurred in Erskine (the Erskine matter).
14 On 8 March 2013, sometime after 8.50 pm but before 9.30 pm, the complainant, Ernest Kevin Ronald Playle (Playle) had walked with a friend, Sam Praetz (Praetz), to a BP service station in Halls Head.
15 Just before entering the service station, Playle noticed a male who had walked into the service station just before him. The prosecution case is that the male was the accused.
16 Playle described the male in his witness statement of 9 March 2013. He had never seen the male before. Playle said he would definitely recognise him if he saw him again.
17 There is surveillance feed from the service station CCTV facility which the prosecution says shows the male and Playle at the counter in the service station.
18 Praetz in his witness statement of 9 March 2013 states he also saw the male walk in front of the two friends. He did not pay much attention to the male at that time, but provided a description of him. The description by Praetz is less detailed than that of Playle.
19 After Playle had completed purchases in the service station he walked out to where Praetz was waiting. The two walked off. The male jogged after them. He started talking to them.
20 In talking to the two, the male talked about a Mr SJ, who the male said owed him $20,000 (Playle witness statement) or $30,000 (Praetz witness statement), in drug money (Playle) or for drugs (Praetz); and SJ had the male's Jeep vehicle.
21 Playle in his witness statement states that the streetlight was on and he could see the male's face clearly; but he states that even without the streetlight he would have been able to see his face as there was enough light. Playle also said he was looking at him for five to 10 minutes while the conversation with the male was going on.
22 Praetz's witness statement contains no equivalent statements.
23 Towards the end of his speaking with the two, the male produced an extendable baton. He then shook Praetz's hand and turned to Playle. At that point, the male struck Playle in the left eye with his right closed fist. He demanded Playle's identification and his wallet.
24 Playle threw his wallet to the male, who took some things from it and sprinted back towards the service station.
25 Praetz provided a further description of the male in his witness statement, based on his observations of the male for about 45 seconds at no more than half a metre distance from him at the nearest point, with a clear and unobstructed view and with street lights lighting up the male.
26 The male in the surveillance feed can be seen wearing sunglasses and with a gold chain around his neck. On 16 April 2013 police seized from the accused black Prada brand sunglasses and a gold chain with a crucifix.
27 Neither Playle nor Praetz correctly identified the accused in the digiboard procedure each undertook.
28 None of the items taken from Playle have been recovered.
29 There is no forensic evidence linking the accused to the offence at present.
30 I turn to the admissions and their context.
The admissions and their context
31 I continue to describe what is either common ground before me for the purposes of the application or unchallenged evidence of Moore and Hackett.
32 I begin with matter from the witness statements of the two police officers.
33 Moore as part of his enquiry in relation to the Erskine matter obtained still shots of the male from the surveillance feed, shots which were distributed within the Western Australian Police and to local media calling for identification of the male. As a result there was an identification of the accused.
34 On 10 April 2013 Moore and Hackett went to Hakea Prison where the accused was in custody in relation to a separate and unrelated matter (the separate matter). Moore had gone in relation to the Erskine matter and Hackett had gone in relation to the separate matter.
35 The accused was cautioned and notice was given of the intention of Moore and Hackett to interview him. The accused refused to participate in a video recorded interview, saying he was acting on the advice of his lawyer.
36 Moore began to question the accused in relation to the Erskine incident. The accused offered no 'free recall' (Moore witness statement [25]) and denied any knowledge of or involvement in the Erskine matter. Moore showed him five stills from the surveillance feed, but the accused made no comment on them and refused to endorse them as having been shown to him.
37 Hackett then began to question the accused in relation to the separate matter. The account of what happened next is to a similar effect in the Moore witness statement and Hackett witness statement. I take the Moore witness statement ([29] - [33]), inserting reference to any difference that is material in the Hackett witness statement.
Whilst YARRAN was being questioned in relation to that matter, he began talking about associates of his in the Mandurah area and certain people that owed money for illicit drugs.
[In the Hackett witness statement the following also appears at [18], difference in account emphasised):
YARRAN refused to answer any questions but made comment regarding associates of his in the Mandurah area that owed money for illicit drugs. ]
YARRAN stated that a male by the name of [SJ] owed him money and also that [SJ] had possession of a Jeep owned by YARRAN.
This particular piece of information had relevance to my investigation and I made reference to the evidence of the victim and eyewitness.
I told YARRAN that the victim and eyewitness both stated to Police that the offender instigated a conversation with them on the night of the incident, talking about the fact that [SJ] owed the offender money and had possession of his Jeep.
YARRAN offered no explanation to this apart from saying that [SJ] owed money to numerous people and that he was being set up.
38 The statements attributed to the accused as to SJ owing the accused money and having the accused's Jeep are the admissions the evidence of which just set out the state seeks permission to lead in the prosecution for the Erskine matter.
39 At the hearing before me the testimony of Moore and of Hackett was (broadly) to the same effect as their respective witness statements, so far as those witness statements went. Their testimony gave further detail in some respects, however, as I now indicate.
40 Moore testified he was aware before going to Hakea Prison that the accused had indicated he had been advised by his legal representative not to participate in a 'video interview' (10 December 2013, examination-in-chief, ts 28). However, Moore testified he went to Hakea in the hope that the accused would agree to participate. While Moore did not agree the evidence for the prosecution was thin, he agreed he was aware when he went to Hakea that neither Playle nor Praetz had identified the accused in a digiboard process; there was no forensic evidence; no items stolen had been attributed to the accused; and the case for the prosecution would significantly depend on the jury being satisfied the accused was the person in the stills from the surveillance feed, where the stills were 'not the clearest' (10 December 2013, cross-examination, ts 39). Further, the accused had not then been charged. Moore had gone to Hakea to offer him the opportunity to tell his side of the story; and to continue the investigation in the Erskine matter.
41 In his testimony Moore explained 'free recall' referred to above as answers to open ended questioning, which the accused did not provide other than to deny any involvement in or knowledge of the Erskine incident.
42 Moore further testified he did not recall how he indicated to the accused that Moore's questions were at an end and Hackett's questions were about to start. However, he testified that it seemed likely that he indicated this by passing the accused over to Hackett.
43 Moore estimated that from the start of his initial exchange with the accused to the start of Hackett's questioning 10 minutes elapsed.
44 Moore testified that he did not recall if Hackett cautioned the accused at any point.
45 Moore testified that at least half an hour after Hackett started to question the accused the latter mentioned SJ's name, as part of what the accused said when he went off on a 'tangent' (10 December 2013 examination-in-chief, ts 32) from Hackett's questions. Prior to that time he had answered some of the questions, but generally his answers had been 'No comment' or 'I don't know anything about that' (10 December 2013, cross-examination, ts 43).
46 Moore testified that the interview had effectively come to an end after Moore had said to the accused that Playle had stated to police that the male had mentioned SJ, the accused had provided no explanation and the accused had gone on at some length to complain about him having been locked up.
47 Moore testified that, in all, the interview with the accused by himself and by Hackett had run in total approximately an hour and 20 minutes.
48 Moore testified that at the time of his questioning the accused he was aware that an admission made by a suspect to a police officer in a serious case is inadmissible unless it is recorded.
49 Hackett for his part testified that, prior to going to Hakea Prison, he received an email indicating that the accused would be unwilling to participate in a recorded interview.
50 Hackett was the investigating officer on two other matters relating to the accused. On 10 April 2013 Hackett had gone to Hakea Prison with Moore on one of those, the separate matter, in the hope, notwithstanding that he had been told the accused would not participate in a recorded interview, that the accused would participate in one in relation to the separate matter.
51 As between Moore and himself, Hackett was the senior officer.
52 Prior to going to Hakea, on 11 March 2013 Hackett had observed an audiovisually recorded interview between police and the accused unfold. Hackett himself did not participate in the interview. It was common ground before me that in that interview, the transcript of which became an exhibit at the voir dire, the accused had referred to SJ. The transcript (exhibit C) includes a reference to SJ as some one the accused had known for some months at that point. The interview of 11 March 2013 was a reasonably lengthy one, 'pretty much' (10 December 2013, examination-in-chief, ts 47) all of which Hackett had observed unfolding before him. However, by 10 April 2013 Hackett had ceased to have that reference in mind.
53 Hackett testified that he did not at any stage switch on the recording equipment in the room at Hakea where the interview on 10 April 2013 was conducted. Hackett accepted he was aware of and could have operated that equipment.
54 Hackett testified he did not issue a caution to the accused at any stage in the interview because Moore had given one at the beginning, and there was no distinct gap between Moore's questioning and Hackett's questioning.
55 Hackett testified that when he questioned the accused the accused became agitated and aggressive, speaking quickly and swearing, saying he would not be interviewed about the separate matter. This may be contrasted with Moore's testimony as to the accused's responses to Hackett's questions.
56 Hackett testified he did not ask the accused many questions, and, when the accused began to talk of SJ, Hackett simply allowed the accused to speak.
57 Hackett testified that his estimate of the time between the accused's arrival in the interview room at Hakea and the end of the interview was 10 minutes, maximum, which may be contrasted with Moore's estimate. Indeed, I note Moore's and Hackett's respective notes of the events at Hakea, which became exhibits in the voir dire and which were compiled not long after the events there by both police officers. Those notes respectively showed (after the explanation by Hackett of a correction of his notes which he had made) elapsed times consistent with their respective estimates.
58 Hackett testified he had given thought, before the accused left the room, to whether the accused should be given the opportunity repeat his reference to SJ while being recorded, although Hackett had not raised the matter with Moore, because the accused was leaving the room and he had previously (as I understood his evidence) indicated he would not be involved in a recorded interview. He also testified that it was at the point the accused was leaving the room he realised 'that the way the whole situation has unfolded is going to put us in the situation that we're here today' (10 December 2013, cross-examination, ts 63).
59 It was not in contest before me that the evidence of the admissions which the state seeks permission to lead is, by virtue of Criminal Investigation Act s 118(3), not admissible in the prosecution in respect of the Erskine incident unless the state has the benefit of one or other of the exceptions in s 118(3)(b). I so determine.
60 Nor is it in contest that there is no question in this case of the application of the common law exclusionary rules for confessional evidence, as to involuntariness, unfairness or public policy, save that a matter of unfairness was pressed for the accused as I will indicate.
61 I turn then to the law applicable to the law as to the first of the exceptions referred to in Criminal Investigation Act s 118(3)(b) and apply that law.
Exception in Act s 118(3)(b)(i): 'reasonable excuse' (c)
62 It is not in contest before me that the only basis for the application of Criminal Investigation Act s 118(1) 'reasonable excuse' is (c), 'the suspect did not consent to an audiovisual recording being made of the admission'.
63 It was common ground before me that there is no authority on the application of Criminal Investigation Act s 118(1) 'reasonable excuse' (c). However, there is authority on the application of its predecessor provision, Criminal Code (WA) (Code), s 570D(4)(c). That provision in its material context was as follows:
570D. Accused's admissions in serious cases inadmissible unless videotaped
(1) In this section -
'admission' means an admission made by a suspect to a member of the Police Force or an Anti-Corruption Commission official, whether the admission is by spoken words or by acts or otherwise;
…
(2) On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless -
(a) the evidence is a videotape on which is a recording of the admission; or
(b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission; …
…
(4) For the purposes of subsection (2), 'reasonable excuse' includes the following -
…
(c) The accused person did not consent to the interview being videotaped.
65 The authority on Code s 570D(4)(c) is The State of Western Australia v Yerkovich [2004] WASC 62 (Roberts-Smith J). There is comment on that case in what appears to be the most recent High Court authority on Code s 570D or Criminal Investigation Act s 118, Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138. See Carr [70] - [72] (Gummow, Heydon & Crennan JJ); see also [14] (Gleeson CJ) (commenting on the question as to Yerkovich raised in [72] below; to same effect).
66 In my view, it is sufficient to refer to Carr [71] (part), [72] (part). In Carr itself there was a video recorded interview in which the admission was made, albeit an interview to which the accused had not consented. Here, of course, there was no video recorded interview at all.
67 Carr [71] (part), [72] (part) (footnotes omitted) is as follows:
In Yerkovich, the accused allegedly made unrecorded off-camera admissions, having refused to answer any questions during a videotaped interview. The State argued that the off-camera statements were admissible as there was a 'reasonable excuse' for the non-existence of a videotape, namely that the accused 'did not consent' to a videotaped interview. However, Roberts-Smith J ruled that the evidence was inadmissible: the exception in para (b) of s 570D(2) did not apply because the accused was never asked whether he did or did not consent to the interview being videotaped. In this Court, counsel for the State accepted that 'did not consent' in s 570D(4)(c) means that an accused 'positively did not agree' to being videotaped.
This Court does not need to address the correctness of the ruling in Yerkovich or the response to it in this Court by counsel for the State: the essential point is that Yerkovich illustrates, contrary to the appellant's submissions, that para (b) of s 570D(2) and the question of consent within the meaning of para (c) of s 570D(4) come into play only in the absence of a videotape.
68 On my consideration of Yerkovich it is difficult to avoid the conclusion that, if that case was correctly decided, the exception in s 118(1) 'reasonable excuse' (c) is not met here as there was no evidence that the accused was ever asked whether he did or did not consent to an audiovisual recording being made of the admissions.
69 The submission for the state was that the reference in s 118(1) 'reasonable excuse' (c) to 'did not consent to an audiovisual recording being made of the [admissions]' was capable of including circumstances where it was evident the accused would not have consented. That was evident in this case, the state said, from the following:
• the prior video recorded interview showing the accused was well aware of video recorded interviews; and
• clarity in the statements the accused made to Moore and Hackett concerning his wish not be recorded and the character of what was said by the accused in the narrative thereafter when the interview was not over.
70 I took the state to be asserting that in such a case as this one, where the matter was that clear, and there was no evidence that the admissions were made other than by the accused's free choice to speak as he did outside a recorded interview, the terms of s 118(1) 'reasonable excuse' (c) 'did not consent to an audiovisual recording being made of the [admissions]' were met.
71 I do not consider Yerkovich, if it is relevant to the proper approach to be taken to s 118(1) 'reasonable excuse' (c), so allows. In Yerkovich, in the context of the accused having made it clear to police he would not say anything to them (see [36]), it was not sufficient for the purpose of showing the accused in that case 'did not consent to the interview being videotaped' that police on that basis assumed he would not give such consent (see [121]).
72 It seems to me that Yerkovich is relevant to the approach to be taken to s 118(1) 'reasonable excuse' (c). It is in accord with the natural and ordinary meaning of the statutory language after the replacement of 'did not consent to the interview being videotaped' with 'did not consent to an audiovisual recording being made of the admission'; and it is consistent with the purpose of Criminal Investigation Act s 118. See on that purpose Floyd v The State of Western Australia [2013] WASCA 33 [39] (McLure P, Newnes & Mazza JJA agreeing) referring to Carr [57] (Gummow, Crennan & Heydon JJ); and Wright v The State of Western Australia [2010] WASCA 199 [52] - [53] (McLure P, Buss JA agreeing), [131] (Blaxell J).
73 It may be noted that there is authority there are some 'significant differences' between Criminal Investigation Act s 118 and former Code s 570D, and some words which are the same as before appear in 'a different statutory setting', so that, while authorities on the meaning of s 570D may 'throw light' on the meaning of s 118, they are 'not necessarily a reliable guide to the proper construction of the current provisions'. See Wright [132] (Blaxell J) (source of quotations).
74 However, it is not evident to me the differences in wording here are such as to make Yerkovich no longer a reliable guide, after the replacement referred to; and there is no authority otherwise. Further, there is no difference in statutory setting evident to me.
75 I have noted Wright [145] (Blaxell J) on 'reasonable excuse' which, however, does not reach the present matter.
76 This is not to say 'did not consent to an audiovisual recording being made of the admission' is incapable, on Yerkovich, of application to matters before the admission is made. However, at first blush, it appears it would not be a straightforward matter to establish such application. An example might be an accused's statement to police anticipating admissions would or might be made in the course of a further exchange with them, being a statement sufficient to cover the admissions actually made, coupled with an indication no consent was given to the audiovisual recording of that exchange, which might be sufficient. However, I do not need to consider whether such a statement would in respect of such admissions engage s 118(1) 'reasonable excuse' (c). That is because it cannot be contended any such statement was made here. Neither Moore nor Hackett stated or testified that the accused gave them any reason to believe any admissions would or might be made.
77 Accordingly, I would not uphold the state argument on Criminal Investigation Act s 118(1) 'reasonable excuse' (c).
78 I turn now to the law applicable to the exception in Criminal Investigation Act s 118(3)(b)(ii), referring to s 155, and apply that law.
Exception in Criminal Investigation Act s 118(3)(b)(ii): s 155
79 It was common ground that the relevant authorities are Wright [11] - [12], [41] (McLure P, Buss JA agreeing), [175] - [188], [206] - [211] (Blaxell J); Floyd [41] - [47] (McLure P, Newnes & Mazza JJA agreeing); and Wells v The State of Western Australia [2013] WASCA 124 [13] - [16], [28] - [31] (McLure P, Newnes & Mazza JJA agreeing).
80 From those authorities I extract the following principles as to the approach I should adopt in this case to Criminal Investigation Act s 155(2) and (3):
1. The discretion in s 155(2) is to admit otherwise inadmissible evidence, and is to be exercised by reference to the considerations in s 155(3), which are both mandatory and exhaustive: Wright [12].
2. The burden of persuading the court to exercise the discretion under s 155(2) rests on the prosecution; and to the extent its discharge rests on disputed questions of fact the prosecution must prove those on the balance of probabilities: Wright [188](d) (Blaxell J).
3. In relation to s 155(3)(a), favouring the admission of the evidence of the admissions is that it is not objected that the evidence is unreliable; however, matters of objection might include an objection based on common law grounds, such as unfairness to the accused from admission of the evidence: Wells [39]; and Wright [183], [207].
4. In relation to s 155(3)(b), favouring the admission of the evidence of the admissions is the greater seriousness of the offence; and in assessing the seriousness of the offence account should be taken at least of the maximum penalty and where on the scale of seriousness the offending in the particular case may be placed: Wright [178] read with [117], [179], [208]; and Floyd [43].
5. In relation to s 155(3)(c) and (d), favouring the non-admission of the evidence of the admissions is the greater seriousness of the contravention; and in assessing such seriousness account should be taken of the matters in (d), with much greater weight to be given to the contravention if it was intentional or reckless than if it arose from an honest and reasonable mistake of fact; and in cases of a contravention not fitting within the categories in (d), such as carelessness, the court will assess its seriousness and give the factor such weight as it thinks fit: Wright [180]; and Floyd [44].
6. In relation to s 155(3)(e), the greater the probative value of the evidence the greater the weight to be given to this factor as one favouring the admission of the evidence of the admissions; the probative value of the evidence of an admission will depend not only on the evidence's content and whether the admission can readily be established by other admissible evidence, but also on the evidence's reliability and unequivocalness; but by reason of s 155(4) the weight to be given to probative value can never be enough on its own to justify admission. See Wright [181], [209]; and Floyd [45].
81 I note it is not suggested s 155(3)(f) has a role to play in this case.
82 I turn to apply these principles.
83 As to s 155(3)(a), it was not objected that the evidence of the admissions was unreliable. Indeed, as I will indicate, there is reason to consider that in fact the evidence is reliable. However, for the accused it is objected it would be unfair to him to admit the evidence, given the accused might never have made the admissions if he had been re-cautioned, as he was not when Hackett had taken over questioning. I accept that there is force in that submission, given the admissions came immediately after questioning by Hackett, not immediately after questioning by Moore.
84 As to s 155(3)(b), the offending was undoubtedly very serious, by reference to the maximum penalty (see Floyd [43]), although not as serious as that in Wright (sexual penetration without consent and murder). At same time, I accept that the offending here is not at the highest level of seriousness of offending of its type. That is because the weapon, the extendable baton, was not used to inflict the injury Playle suffered, which was from a punch.
85 As to s 155(3)(c) and (d), the state conceded that the failure to make the recording was a serious matter. In that regard I note the ready availability of recording facilities, as known to Moore and Hackett and able to be used by at least Hackett. I consider the matter is made more serious by the fact on Moore's evidence he was aware at the time of the requirement for recording of admissions if those admissions were to be admissible; and by the fact on Hackett's evidence he had given thought to the matter of recording the admissions as the accused was leaving the interview room. Allowing for the fact that the admissions were made unexpectedly as I have indicated, I consider the matter is made more serious still by the fact that the admissions were made in circumstances where Moore and Hackett were questioning the accused and where the accused could readily have been asked to repeat the admissions while being audiovisually recorded. Compare Wright [56].
86 I have assessed the seriousness of the contravention as I have described it having regard also to the purpose of Criminal Investigation Act s 118(3)(a) in Floyd [39], referring to Carr [57] and Wright [52] - [53], [131].
87 As to s 155(3)(e), it was not in serious contest the evidence had significant probative value, given the two matters the accused referred to, of his acquaintance with SJ and SJ having the accused's Jeep, and given the significant strength the evidence would add to the prosecution case on identification, being strength not available from other evidence at present. Further, the reliability of the evidence of Moore and Hackett as to those two matters in my opinion had significant support from the evidence of what the accused had said as to SJ in the video recorded interview of 11 March 2013, although, of course, that evidence would not be admissible, or clearly admissible, in the trial in the present prosecution.
88 In my view, on balance, taking account of all material considerations in s 155(3), weighing all the relevant factors, the desirability of admitting the evidence of the admissions that the prosecution seeks permission to lead is outweighed by the undesirability of admitting that evidence.
Conclusions
89 I have determined that Criminal Investigation Act s 118(3)(a) makes the evidence of the admissions which the prosecution seeks permission to lead inadmissible unless either s 118(3)(b)(i) or (ii) is met.
90 I have also concluded I have not been shown that either is met.
91 Thus, I would dismiss the application.
92 I will hear from the parties as to the orders to be made.
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