The relevant legal principles
13The interpretation of the words "official questioning" and "in the course of official questioning" in s 281, its former provisions as well as similar if not identical interstate provisions, has been the subject of considerable judicial review and were comprehensively referred to by Howie J in R v Naa and Bryant v R.
14The following principles are relevant:
a)The section only operates upon objection: R v Reid [1999] NSWCCA 258.
b)Once the strict requirements of admissibility under s 281 are not satisfied the evidence is inadmissible: Schiavini v R [1999] NSWCCA 165 at [24].
c)The general purpose of the provision is to provide a reliable and objective means of resolving disputes about the conduct and substance of police interviews, deterring police malpractice and the making of false or unfair allegations against police: R v Horton (1998) 45 NSWLR 426 per Wood CJ at CL at 21-23; Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 at 207 [8]; Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at 225-232 [22]-[40]; Carr v The State of Western Australia [2007] HCA 47 at [57]-[58]. In Carr Gleeson CJ said at [7] that the proper approach in construing legislative provisions of this kind is, "The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object?"
d)The terms of s 281 are similar to the provisions of the Tasmanian legislation considered by the majority of the High Court in Kelly v The Queen and the majority's decision should be followed: Bryant at [147].
e)The court is required to make an objective assessment of the circumstances and questioning by a police officer may still amount to official questioning regardless of the belief of the police officer: R v Sharp [2003] NSWSC 1117 at [21].
f)While the subjective purpose of a police officer engaging with a suspect might not be decisive as to whether the officer is involved in "official questioning" it may still be relevant: R v Naa at [79] (although Howie J did not elaborate further).
g)A misconception by a police officer about when the section applies and what was required in order to comply with it cannot give rise to a reasonable excuse: R v Sharp at [13].
h)In R v Sharp Howie J made the following pertinent observations about the policy behind s 281 and it is instructive to quote these observations at length:
15 "Official questioning", for the purposes of s 281, means "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". I acknowledge once more that the policy behind the section should impact upon how the words of the provision are interpreted or applied. I am also conscious of the apparent width of the term as defined in the section.
16 Further, I appreciate that there is to some degree an interrelationship between "official questioning" and "reasonable excuse". The wider the interpretation given to "official questioning", and, thus, the more extensive the obligation on police to electronically record conversations with suspects, the more likely it is that a reasonable excuse might be found for not recording a particular conversation in which an admission occurs. But the term "official questioning" must, in my view, have some limit and the conversation under consideration must be reasonably capable of being construed as questioning by a police officer.
17 The policy behind the legislation is, as I have stated, obvious. It is an attempt to limit the opportunities both for a police officer to fabricate the making of an admission by a suspect, and for an accused person to challenge evidence of the making of an admission at a trial of a criminal offence. However, Parliament could have gone further in that endeavour, had it wished to do so. It could have required that any admission, allegedly made by a suspect, be inadmissible unless electronically recorded. If the legislation had been to that effect, it would have been irrelevant whether the admission occurred in questioning or otherwise. But it did not do so, and there is nothing in the Second Reading Speech to indicate that its purpose was other than to regulate police questioning. It is, in my view, inappropriate for the courts to interpret the legislation to bring about that result, however desirable it may be. There can be no doubt about the meaning of the word "questioning" and there is no occasion to give it any other meaning than it generally possesses.
18 There are clearly occasions where it will be necessary for a police officer to ask a suspect or other person a question but where there may be some doubt, to my mind at least, whether the questioning falls within the scope of the provision. One such occasion may be when the suspect is being processed by the custody officer under Part 10A of the Crimes Act. Yet questioning of the accused by the officer in accordance with the Part may literally fall within the meaning of "official questioning" and hence the section might operate to exclude any admission made at that time. An admission which is made during that process and which is not recorded might be admitted into evidence because there would be a reasonable excuse for failing to record the admission because it was unexpected and unresponsive to the question asked.
19 But it seems to me that, because the legislation does not require that all admissions be electronically recorded, police should be able to determine with some degree of certainty what is and what is not "official questioning" for the purposes of the section and thus know when it is that they should takes steps to have a conversation electronically recorded to preserve any admission made by the suspect. However, where a police officer engages a suspect in conversation on any matter touching the investigation of an offence without recording the conversation, the officer takes a real risk that a court will find it to be official questioning regardless of the belief of the officer on that subject. As with Detective Hall in the present matter, if the police officer ought to have known that he or she was engaged in official questioning at the time an admission is made, a reasonable excuse for a failure to record an admission will not arise simply because the police officer might not have realised that the conversation was "official questioning" for the purpose of the section.
20 I hesitate to attempt to give any more meaning to the words of the section that arise from the definitions contained in it and the policy behind the legislation. But the word used is "questioning" and it seems to me that it at least implies that the police officer is attempting to elicit from the person a response that the officer foresaw might provide information relevant to the investigation of the commission of an offence or possible offence, or be to the person's prejudice in that regard. I would be prepared to find in an appropriate case that statements made by the officer to the suspect might amount to "questioning" even though there may be no question asked. However, the mere fact that an admission occurs in response to a question or statement made by a police officer cannot retroactively convert the conversation into "official questioning" if it did not fall within the definition at the time the admission was made.
21 I wish to emphasise that, in my opinion, the court is required to make an objective assessment of the circumstances surrounding the making of the alleged admission in determining both whether it was made during official questioning and whether there is a reasonable excuse in failing to electronically record it. If my view of official questioning is correct, it would follow that, if the police officer did not foresee that a response might be given to the statement or question made to the suspect but ought to have done so, the conversation would amount to "official questioning". To that extent the conduct of the police officer is subject to the court's review so far as the admissibility of any admission allegedly made by the accused is concerned.
22 Nothing that I have said in this judgment should be taken as a green light for police to ignore the provision or return to the type of practices that caused Parliament to enact it. The legislature might find that a point in time has been reached when it is opportune to reconsider the provision and further limit the opportunities for disputes to arise about admissions, as occurred before me. This is particularly so given the advance of technology for recording the human voice since the section was enacted.
23 In respect of the conversation between the accused and Detective Bennett, the portion of the conversation to which objection is taken must be viewed in the context of what went before it and s 281 must operate in a realistic and commonsense way. It was not inappropriate, in my opinion, for Detective Bennett to speak to the accused at the scene in order to see how she was and to attempt to alleviate her concerns when she expressed her fears. I do not believe that he intended by anything he said, to elicit an admission from her or to obtain information beneficial to their investigation of the murder. Nor should the officer have reasonably foreseen that an admission might be made as a result of what he said to the accused.
24 I acknowledge that the intention of the police officer cannot take a conversation outside the scope of the provision if otherwise it falls within the meaning of "official questioning". But in this case, I am satisfied that the intention of the officer was not to question the accused at all but rather to allay her fears. I accept his evidence that the admission made by the accused was, so far as he was concerned, unresponsive to the statement made by him that occasioned it.
In R v Naa Howie J adopted these observations and said that while his decision is R v Sharp was before the High Court had reason to consider similar provisions in other jurisdictions, what the High Court did say did not affect what he had said (at [48]).
i)The words "in the course of'' do not require that there be a causal connection between the admission and the official questioning but the admissions must arise during "the course of official questioning": Kelly v the Queen at [45], and at [52] where the majority said:
The expression "in the course of official questioning" in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s 8(2)(a) of the Act relatively narrow in the sense that it does not provide that video-recording is a condition for admissibility of all confessions made by persons who are suspected or ought reasonably to have been suspected of having committed a crime: video-recording is only a condition for admissibility of those made "in the course of official questioning". It renders s 8(2)(a) of the Act relatively broad in the sense that it does provide that video-recording is a condition for admissibility of confessions made "in the course of official questioning", without any limitation turning on whether the maker of the confession is in custody or under arrest. The requirement that confessions be video-recorded extends to confessions made anywhere so long as they are made "in the course of official questioning" - whether in police stations, in police cars, at the scene of a crime, or during informal encounters. The difficulty of video-recording confessions in particular circumstances is met by ss 8(2)(b)-(d) and (3)(a)-(d) of the Act. But whether the expression "in the course of official questioning" is viewed as making s 8(2)(a) narrow or broad, it stipulates a relatively clear criterion, suitable for application by police officers, whose usual procedures are formal and methodical.
In R v Naa Howie J said in this context at [77]:
Although, as James J noted, the words "in connection with an investigation" are of wide import, in effect they confine or focus the scope of the questioning between a police officer and a suspect. Without these words "official questioning" would arise whenever a police officer is questioning a person who is or, ought reasonably to have been, suspected of committing an offence whatever be the content or circumstances of the questioning. As I pointed out in Sharp, that is not what Parliament sought to achieve by the provisions. There may be formal or informal police procedures before or after arrest that do not fall within the ambit of the section because they are not in connection with an investigation...
j)A question only falls into the ambit of s 281 where the police officer has reason to suspect the person of committing a crime: R v Villa at [44]-[53]; R v Taouk [2005] NSWCCA 155; R v Naa at [69]-[70].
k)In Carr v The State of Western Australia Gummow, Heydon and Crennan JJ (with Gleeson CJ agreeing but with additional reasons on other grounds) in considering the relevant Western Australia provision said of the use of the word "interview" at [47]-51] (footnotes omitted):
The meaning of "interview" in Ch LXA
47. Beyond the clarification that "interview" means an "interview with a suspect by ... a member of the Police Force", the Criminal Code does not otherwise define the word "interview". The Court was taken to a number of dictionary definitions, none of which provided a clear resolution to the present case. The appellant contended that "interview" connoted a "formal, unhurried interrogation procedure directed to the investigation of crime", as opposed to a chat, informal banter, or talk carried out in an atmosphere of informality. In part, this proffered definition was derived from dicta in the judgment of Wright J in R v McKenzie. In that case certain admissions were ruled inadmissible because they were not recorded by videotape, not for the absence of an "interview".
48. The appellant submitted that a mere conversation would not suffice to constitute an "interview". To this end, the appellant pointed to the absence of any definition such as that found in s 74C of the Summary Offences Act 1953 (SA), in which "interview" is defined to include:
"(a) a conversation; or
(b) part of a conversation; or
(c) a series of conversations".
This comparison of the South Australian and Western Australian provisions is of doubtful utility. The South Australian provisions were inserted in 1995 by s 5 of the Statutes Amendment (Recording of Interviews) Act 1995 (SA), well after the enactment in 1992 of the relevant Western Australian provisions. The most that could be said is that the South Australian provision might tend to highlight an ambiguity in the Western Australian one, but it does nothing to resolve that ambiguity one way or the other. The inclusion of conversations in the South Australian definition says nothing about whether they are to be excluded from the Western Australian provision, which is silent on the matter.
49.The appellant also contended that the "formality" of an interview required a "meeting of minds" about the nature, context and purpose of the discussion. However, that phrase is more likely to mislead than assist. The absence of a "meeting of minds" might indicate that the appellant's admissions were involuntary, or that they were elicited by unfair deception. Such cases can and should be dealt with under the common law exclusionary rules. They are not matters which touch upon the definition of "interview".
50.Even if it be accepted that the term "interview" connotes a degree of formality, it is not apparent where that line is to be drawn. The conversation between the appellant and the police officers in the present case was no mere informal chit-chat: the police officers fell in with the appellant's style of speech, but they structured the relevant part of the conversation as a patient and deliberate sequence of questions and answers designed to elicit admissions. However, there is much force in the observation of Ormiston J in R v Raso that:
"it would be difficult to identify that form of questioning which constitutes an 'interview' and that which constitutes some less formal kind of questioning in circumstances where the questions are being administered by the police".
Raso concerned the meaning of s 23V(1) of the Crimes Act 1914 (Cth) which at that time included the phrase "interviewed as a suspect". That legislation concerned the tape recording of such interviews, and Ormiston J considered it:
"artificial, and possibly conducive to the abuses which the legislation is trying to avert, to draw distinctions between questioning which takes place on a relatively casual basis and questioning which results from some formal or organised interview".
51.The same is true of the present case. Contrary to the appellant's submissions, neither logic nor the text of Ch LXA justifies the conclusion that "formality" requires that the suspect appreciate that the conversation was being recorded and that its contents could be used as evidence against him. Rather, in an appropriate case these matters may attract the common law exclusionary rules relating to involuntariness, unfairness or public policy.