Solicitors:
Office of the Director of Public Prosecutions (Crown)
Oxford Lawyers (Accused)
File Number(s): 2016/311049
[2]
JUDGMENT
The Crown seeks to lead evidence of a conversation between two police officers, Detective Sergeant Hodges and Detective Sergeant Hennessy, and the accused immediately after the conclusion of the accused's second ERISP. The two police officers were the officers who interviewed the accused in that ERISP.
At the conclusion of the second ERISP, a senior officer at the station had asked the accused the formal questions that the independent officer is required to ask. He then left the room.
Paragraph 33 of Detective Hodges' statement of 29 November 2016 reads:
Detective Hennessy and I returned to the interview room. The recording was stopped. I informed [AKB] that he would be charged with the murder of his wife. I said, "[AKB] you will be charged with the murder of your wife, [XY]. Police believe there is evidence that the fire started, and you prevented your wife from leaving her room, causing her death…"
(Interpreter)
I said, "…Police will allege you had an argument with your wife just before the fire and this may have resulted in the scratches.
(Interpreter)
The Interpreter gave [AKB]'s response, "I want to provide another interview, I have a lot to say. My wife and I argue. There were a lot of people involved who need to be responsible."
I asked, "Who are you referring to?"
[AKB] gave no response.
I offered to start another interview. "We can start another interview if you have more you want to tell us."
[AKB] declined, "I am cold and shivering I do not want to talk now.
Detective Hennessey asked, "Why didn't you mention this before?"
[AKB] said, "I do not want to continue. I am cold and shivering."
I offered [AKB] a blanket and he declined.
The statement of the interpreter, Anita Hemmati, of 6 December 2016 recorded that the interview with the accused finished and the custody manager came into the interview room. He asked some questions which the interpreter interpreted to the accused. Detective Sergeant Hodges and the person the interpreter described as the male detective walked back into the interview room and the custody manager left the room. The interpreter said that the recording of the interview had come to a complete stop. Paragraph 8 then went on to say:
Once the interview was finalised AKB said in Farsi,
He said - "There are other people who have contributed to this incident. I don't want to talk about it now. I'll talk about it later."
The interpreter said that she interpreted that to Detective Sergeant Hodges.
The accused objects to this evidence, relying on s 281 of the Criminal Procedure Act 1986 (NSW).
Section 281 provides:
281 Admissions by suspects
(1) This section applies to an admission:
(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and
(b) that was made in the course of official questioning, and
(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.
(2) Evidence of an admission to which this section applies is not admissible unless:
(a) there is available to the court:
(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or
(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.
(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).
(4) In this section:
investigating official means:
(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or
(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.
official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.
reasonable excuse includes:
(a) a mechanical failure, or
(b) the refusal of a person being questioned to have the questioning electronically recorded, or
(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.
tape recording includes:
(a) audio recording, or
(b) video recording, or
(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.
The principal issue to be determined is whether the statements recorded by Detective Sergeant Hodges and the interpreter were made in the course of official questioning.
The Crown submitted that they were not made in the course of official questioning because the interview had come to an end and the statements were not made in response to a question by the investigating officers. The Crown submitted that no question was put to the accused. Rather, it was an explanation of the basis for charging him with murder. It was not in question form and it did not require a response. What the accused said was volunteered.
Senior counsel for the accused submitted that the statement made by the police that he had an argument with his wife before the fire and that that may have resulted in the scratches was not something that had been put in the interview, and in that way amounted to a question. In putting something that had not been earlier raised, that is, the link between the argument and the scratches on the accused, the statement was inviting a response. The accused did not volunteer the information as in Kelly v The Queen (2004) 218 CLR 216 but said what he did in response to what had been put to him.
In Kelly the appellant made an admission to the police some 30-40 minutes after a video recording had ceased and the appellant had left the video interview room. The admission was admitted into evidence at the trial over objection on the basis that the statement was not made in the course of official questioning. The Court of Criminal Appeal of Tasmania dismissed his appeal against his conviction: R v Marlow and Kelly (2001) 129 A Crim R 51.
On the further appeal to the High Court, the joint judgment of Gleeson CJ, Hayne and Heydon JJ said:
[48] Secondly, a major difficulty with the appellant's narrower constructions is that they involve inserting ideas which have no foothold in the language of s 8 of the Act. Section 8 requires that the confession or admission be made "in the course of official questioning" - not "within a reasonable period following the conclusion of a period of formal questioning", and not "as a result of" official questioning.
[49] Thirdly, a major difficulty with the appellant's broader construction is that by seeking to include "any words" spoken between the suspect and the police officer, it gives no weight to the requirement that there be questioning. The appellant's broader construction means that s 8 of the Act applies where a police officer says to a suspect - "Let us go to the police station so that I can ask you some questions. I do not propose to question you until we get there" - and the suspect then volunteers a confession. An event cannot be said to have taken place "in the course of official questioning" if the official nominates a future time when that course of questioning will commence, and the event happens before that time. The appellant's broader construction also means that s 8 of the Act applies where the police officer says that no further questions will be asked and that the suspect is free to go home, and some time later the suspect confesses. These consequences of the appellant's broader construction are inconsistent with the statutory language and indicate that that construction is fallacious.
…
[52] 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.
[53] In this matter "the course of official questioning" ended when Detective Sergeant Lopes ceased to ask questions and said at 9.17 pm: "[W]e'll conclude the interview". Other activities of the appellant not related to official questioning and other police procedures not involving questioning then took place. No further question was asked which triggered the impugned statement. To treat the impugned statement as having been made in the course of official questioning would be to ignore the statutory language. The impugned statement in this case is in the same position as the statement made by the accused in R v Julin51 where, after questioning had ceased, the accused had been arrested and cautioned, and driven half a kilometre to the scene of the crime during which time no conversation took place between him and the police officer: "[t]he official questioning of the accused concluded prior to the car trip when he was arrested and cautioned …".
Section 8 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) was in similar terms to s 281.
In Bryant v R [2011] NSWCCA 26 an admission was made in slightly different circumstances. Those circumstances are set out at [133] of the judgment as follows:
After the ERISP interview Sergeant Gooch secured the appellant in the dock at 2.34pm and said to him, "Do you understand that you are going to be charged with several armed robbery offences?" The appellant responded, "Yes, I don't know about the others but I admitted to three. The two here and one in Canberra". The Sergeant said, "As these are serious offences that involved violence that happened over a period of time I will be refusing bail. That means that I will try to get you before a magistrate this afternoon. What happens from there is the decision of the magistrate, do you understand that?" The appellant said, "Yes, I don't know why I did it".
Justice Howie (with whom McClellan CJ at CL and Simpson J agreed) then said:
[137] The question for the Judge to determine was whether the questions asked by Sergeant Gooch were "official questioning" for the purposes of the section: that is were her questions" in connection with the investigation of the commission or possible commission of an offence"? This is a question of fact and, provided it was open to his Honour to have found as he did, that they did not fall within the scope of the section, this Court would not interfere in that finding; see R v Taouk [2005] NSWCCA 155; 154 A Crim R 69.
…
[139] I am prepared to accept for the present ground of appeal that the Sergeant was "questioning" the appellant but I have grave doubts that she was. "Questioning" seems to me to be more than simply asking a person whether he understands information that has been conveyed to him. In reality the Sergeant was merely seeking to ensure that the appellant understood what was going to happen: that is that he was going to be charged "with several armed robbery offences". She was not seeking information but supplying him with information. What followed next was again providing the appellant with information: that she was going to refuse him bail and take him before a magistrate. Again the only question she asked was to ensure that he understood what he was being told. I do not believe that this is "questioning" in common parlance. It certainly does not appear to me to be "questioning" in terms of an investigation of an offence. I am prepared to accept that the section is protective legislation, as it was described in Horton at 23, and should not be read down so as to diminish its obvious beneficial effect on the rights of persons in custody. But nor should it be given an effect that was never intended by the legislature.
…
[150] In my opinion, not only was it open for the Judge to find that the conversation between Sergeant Gooch and the appellant fell outside the scope of the section, that was the only finding he could have reasonably made.
If the evidence of the interpreter was to be regarded by itself, that evidence would suggest that the accused volunteered the information recorded in paragraph 8 without any form of prompting. However, on the present application, the Crown relies not only on that evidence but on the evidence of Detective Hodges. The evidence of Detective Hodges discloses a more complete account of how the information came to be volunteered. I note, without disrespect to the interpreter, that her statement was made some six or seven weeks after the event. In my opinion, it is more likely that Detective Hodges' account of what was said is the correct account. Accordingly, the matter must be considered in the light of what was said by Detective Hodges to the accused before he made the statement now sought to be relied upon.
Whilst I accept that no question as such was put to the accused, and whilst I accept that the statements were made, as Detective Hodges said in her evidence, as a way of giving an explanation to the accused, the significant matter is that an assertion was made to the accused which had not been made in the course of either of his interviews. As Button J said in R v Hunter (No. 6) [2014] NSWSC 1149 at [19], the fact that an exchange began with a statement as opposed to a question is not determinative. I accept that in Hunter Button J was satisfied on the balance of probabilities that the statement made in that case "was designed to elicit a response". However, I could not find in the present case, on the balance of probabilities, that Detective Hodges' statement was designed to elicit a response. Nevertheless, making an allegation that had not been previously made in two interviews was, seen objectively, likely to produce a response from the accused, as it did. In that way, I consider that the accused's statement made was made in the course of official questioning.
In those circumstances, it is necessary to consider s 281(2)(b) to see if there is a reasonable excuse a subsequent tape recording was not made.
I accept the evidence of Detective Hodges that the accused was not prepared to embark on a further interview at that time for the reasons that he gave. In that way, there was a reasonable excuse under paragraph (b) of that definition in s 281(4) for that time.
However, no subsequent attempts were made to undertake a further interview with the accused so that what had been said when he was charged could be dealt with in that interview. The reason Detective Hodges gave in cross-examination for not so doing was that she imagined that the accused would be seeking legal advice and that they would be advising him appropriately. She explained further in re-examination that she assumed that, if he was given legal advice and then wanted to speak to her again, contact would have been made. She said that she did not make any further enquiry of him whether he was prepared to take part in another interview.
In those circumstances I do not consider that there is a reasonable excuse that no further interview was conducted in terms of sub-paragraph (2)(a)(ii). There was nothing to prevent another interview being arranged. If, on that occasion, the accused would not confirm what he had said in the exchange after the second interview, that would likely amount to a reasonable excuse for no subsequent tape recording to have been made.
Accordingly, I reject that part of paragraph 33 of Detective Hodges' statement from the words "The interpreter gave [AKB]'s response" to the end of the paragraph, and the whole of paragraph 8 of the statement of Anita Hemmati of 6 December 2016.
[3]
Amendments
26 July 2018 - Publication restriction removed.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 26 July 2018