The mischief to which s 424A was addressed appears in the Second Reading Speech (Hansard Proceedings of the Legislative Council 24 May 1995) concerning the Evidence (Consequential & Other Provisions) Bill. It was there said:
'In closing I wish to make brief comments on the two Bills which are cognate with the Evidence Bill. The first of these, the Evidence (Consequential and Other Provisions) Bill will repeal the Evidence Act 1898 and the Evidence (Reproductions) Act 1967. In addition, it will make amendments to various other Acts which will be required as a consequence of the enactment of the Evidence Bill. It also makes an amendment to the Crimes Act 1900, making the tape-recording of admissions to police compulsory where an accused person is suspected of an indictable offence that may not be tried summarily without the defendant's consent.
The Police Service has already introduced a system for the electronic recording of interviews, implementing the 1986 report of the criminal law review division of the Attorney General's Department. That report set out four objectives for adopting an electronic recording system:
"1. To provide the Courts with a reliable account of statements made by persons accused of crime whilst in police custody.
2. To provide an objective means of resolving disputes about the conduct and substance of police interviews.
3. To deter and/or prevent the use of unfair practices by the police prior to, during and after interviews;
4. To deter the making of unfair and false allegations of improper behaviour by police."
This bill implements one of the recommendations of that report by providing that any unreasonable failure to adhere to the system will result in the inadmissibility of the evidence. The courts are thereby enabled to supervise the operation of the system.'
It was, in my view, directed to the very mischief that Jordan CJ identified in Jeffries (47 SR 284 at 289) to ensure the integrity of the evidence of police witnesses concerning representations of any form attributed to accused persons, and to provide an objective means of resolving any dispute concerning that kind of evidence. In this respect it provides, for NSW, an additional protection to that arising under Pt 3.4 of the Evidence Act, which is concerned with 'admissions' in the extended sense defined in the Dictionary to that Act." (at 438-9)
24 Those remarks were cited with approval by Smart AJ in R v Reid [1999] NSWCCA 258. His Honour went on to say:
It was submitted by the Crown that s424A was designed to deal with cases where there is a dispute as to what was said and done. However, it has the deeper and more fundamental purpose of endeavouring to ensure the integrity of the evidence of police officers as to admissions . The method adopted is to make the recordings of admissions to police compulsory. To avoid the requirement of taped recordings the Crown must prove that there was a reasonable excuse why a tape recording could not be made. If a tape recording could reasonably have been made and was not, it will not assist the Crown that some truly independent person heard what was said as between the police and the accused .
…
Police officers attending a crime scene frequently ask those present what happened and the responses of those present often determine the future course of police investigations. An accused may make important admissions at the scene in such circumstances. The police officers may not have a pocket audio tape recorder with them. I refrain from making any general comment as to whether a judge should find a "reasonable excuse" as much will depend upon the circumstances.
The strongly preferable course is that, in cases of serious crime, interviews with questions asked and answers given at crime scenes be recorded by an audio tape reorder, albeit that it is a pocket one and only one recording can be made. I am assuming, based on experience, that the police and the prosecution will seek to rely on any admissions.
It is important that, if no adequate recording is made at the scene, the admissions alleged to have been made there and intended to be adduced in evidence are put to the accused in a fully recorded interview as early as possible for his acceptance or denial. Failure to do so would be critical unless, of course, the accused declined to participate in such an interview.
If the investigating police officers do not have an audio tape recorder at the scene they should, apart from essential questions, directly affecting the ongoing investigation, conduct their interviews with an accused where tape recording equipment is available if evidence of the admissions is intended to be led.
Attempts to circumvent s24A (sic) will not be tolerated. The stratagems so far used have included interviews at the scene or in a police car or at a police station and of the recorded (sic) in a police notebook, whether signed or unsigned. These occur before any ERISP and sometimes in substitution for an ERISP. (paras 63, 65-69) (emphasis added)
25 Spigelman CJ said:
Smart AJ makes a number of comments as to the application of s424A and what is desirable conduct on the part of police with respect to these matters. His Honour's remarks are based on an assumption that the prosecution will seek to rely on any admissions. Police investigations may proceed in accordance with such inquiries as they may properly pursue. However, if it is sought to tender admissions made in the course of such investigations, then the precise and rigorous requirements of s424A must be satisfied . (para 6) (emphasis added)
26 In R v Schiavini (1999) 108 A Crim R 161 the accused was spoken to by investigating police and cautioned. He was informed that the conversation would be recorded in the officer's notebook and replied "Okay". He was asked if he wished to be interviewed by electronic means - that is by way of audio and visual recording, to which he replied "No thanks". He then made admissions that were recorded in the officer's notebook and which he duly signed. The evidence disclosed that the accused was not offered the opportunity to have only an audio recording of the interview. The trial judge, in those circumstances, indicated that he would have excluded the admissions pursuant to s 424A but nonetheless decided to admit the evidence pursuant to s 86 of the Evidence Act. The Court of Criminal Appeal held that his Honour was in error in doing so.
27 Studdert J, who delivered the leading judgment, observed:
The Crown has submitted however that the trial judge was wrong in concluding that s 424A compelled the exclusion of the evidence. It was submitted that to construe what the police officer said to the appellant, namely "Do you wish to be interviewed by electronic means, by that I mean audio and visual recording" as meaning only a combined audio and visual recording, was artificial and that the response could reasonably have been taken to amount to a refusal to be interviewed by either means. Having regard to the object intended to be served by s 424A, prudence requires that any interviewing officer explain to a person being interviewed in relation to an indictable offence the alternative forms of "tape recording" available. It is conceivable that a person being interviewed may be prepared to be interviewed by way of audio recording but not by way of video recording. However even assuming the correctness of the Crown submission it would not follow that s 424A(2) was satisfied in the circumstances of this case.
Detective Constable Olsson, who had been present on 10 November 1997 when Det. Inspector Rees conducted his interview with the appellant, carried out a further interview with the appellant on 1 June 1998. On this occasion the interview was recorded by means of an ERISP machine, although the video apparently malfunctioned, and what was recorded was on the audio tape which was admitted into evidence without objection. In the course of this later interview the appellant was not asked about what had been said on 10 November 1997 and he was not asked to admit that he had said what was attributed to him on that earlier occasion.
The Crown has submitted that the later ERISP ought to be regarded as being directed only at one of the offences, being the offence charged in the second count in the indictment, and that what was reasonable for the purposes of admissibility had to be assessed in the particular circumstances of the case. It was argued that it was not reasonable to expect the police officer conducting the later interview to traverse the subject matter of the earlier interview again, and that the facts established reasonable excuse for the absence of a relevant tape recording. It was material, it was submitted, that the relevant entries in the inspector's notebook had been signed; that there was no suggestion at the trial that the evidence that the admissions had been made was false or that the admissions had not been freely made; and that the provisions of s 86 of the Evidence Act had been satisfied in relation to the tender.
Nevertheless effect must be given to the language of the section. (paras 17-20)
28 After citing with approval the passage in Horton (supra) to which reference was made earlier, his Honour continued:
The strict requirements of s 424A(2) reflect the legislative purpose as recognised in Horton . The sub-section requires that there be a tape recording which satisfies either sub-s (2)(a) or (2)(b). Otherwise evidence of an admission is not admissible unless the prosecution establishes "that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made" . The use of the word "could" introduces a concept of impracticability in order to excuse the lack of a tape recording .
If it be accepted that there was a reasonable excuse for the lack of a tape recording in respect of the 1997 admissions because of the appellant's response at that time, the appellant did nevertheless submit to a recorded interview in 1998, and the evidence is not capable of supporting a finding that it was not possible at that time to make a recording of the type contemplated in s 424A(2)(b). The later interviewing officer had been present at the earlier interview so he had knowledge as to what had then occurred. His evidence was that he was the officer in charge of the appellant's case and he had also participated in the interviews about three of the six offences charged against the appellant. …
In my opinion, having regard to the evidence concerning the later electronically recorded evidence, the prosecution here failed to establish that there was a reasonable excuse as to why it was not possible for the type of recording contemplated in s 424A(2)(b) to have been made in June 1998. This being so, the strict requirements for admissibility under s 424A(2) were not satisfied and it follows that the evidence here challenged was wrongly admitted. (paras 21, 22 and 24) (emphasis added)
29 In R v Rowe (2001) 50 NSWLR 510 the Court of Criminal Appeal dealt with a stated case in which the admissibility of evidence of an unrecorded admission of a summary offence was considered in circumstances in which the offender was being officially questioned in relation to an indictable offence. There was tape-recording equipment available at the station but it was being used to interview someone else. The suspect indicated that he did not wish to be interviewed until his solicitor arrived but the interrogation, during the course of which the admission was made, went ahead. When the offender's solicitor arrived, he and his solicitor declined to sign the notes of the conversation which had been made by the police officer. The opportunity for a tape recorded interview, which had not been offered earlier, was declined. The Court of Criminal Appeal held that the primary judge had erred in concluding that the admissions were not inadmissible by reason of s 424A of the Act. Fitzgerald P, with whom Ireland AJ agreed (Smart AJ dissenting but on a different ground) observed that:
The judge did not explain in either his reasons or the stated case why he thought that there was a "reasonable excuse" for not making a tape recording of the conversation between Fitzgerald and the appellant or, for that matter, of the later conversation at which the appellant's solicitor was present. The judge also made no mention of the definition of "reasonable excuse" in s 424 A (4) or of the combined operation of s 424 A (2)(b) and s 424 A (2)(c) of the Crimes Act .
The prosecution submitted in this Court that the "reasonable excuse" for Fitzgerald's failure to make a tape-recording was that, at the time, Fitzgerald "had no cause … to suspect that [the appellant] had committed [the] offence [to which the present proceeding relates]". In my opinion, that submission should be rejected. Fitzgerald's questioning of the appellant related to the offence of knowingly harbouring a prisoner, for which he had been arrested, and was undertaken despite his request to speak with his solicitor before he spoke to police. Section 424 A of the Crimes Act expresses a plain legislative policy, which Fitzgerald disregarded, that official questioning in relation to such an offence should be tape-recorded . His lack of suspicion that the appellant had also committed another, less serious offence, could not provide a "reasonable excuse" for his obligation to comply with s 424 A in relation to the indictable offence to which his interrogation of the appellant related.
The prosecution did not submit, and could not have credibly submitted, that the need either to delay the appellant's questioning for a comparatively brief period or interrupt the questioning of the woman who was being interviewed if Fitzgerald's questioning of the appellant before his solicitor arrived was to be tape-recorded provided a reasonable excuse for the course which Fitzgerald adopted. If such a matter constituted "reasonable excuse", then the entire conversation between Fitzgerald and the appellant would be admissible on his trial for the indictable offence of knowingly harbouring a prisoner. That would seriously subvert the legislative intent expressed in s 424 A of the Crimes Act : see R v Schiavini (1999) 108 A Crim R 161. As this Court has indicated, that should not occur: R v Horton (1998) 45 NSWLR 426; R v Reid [1999] NSWCCA 258 :
It is unnecessary to consider the appellant's other arguments. The evidence of his conversation with Fitzgerald should have been held to be inadmissible by virtue of s 424 A of the Crimes Act . (at 514-5) (emphasis added)
30 Kelly v the Queen [2004] HCA 12; 218 CLR 216 concerned the scope of the phrase "in the course of official questioning" in a broadly similar Tasmanian provision. It was held by a majority of the High Court that a statement made by the accused some time after the conclusion of the video-recorded interview was not made in "the course of official questioning". Considerable attention was however devoted to the problems created by confessions alleged to have been by suspects to the police: see Gleeson CJ, Hayne and Heydon JJ (at paras 22-40); McHugh J at paras 86-97; Kirby J at paras 136-137.
31 In Nicholls & Coates v the Queen [2005] HCA 1, 219 CLR 196 the High Court considered the operation of s 570 D of the Criminal Code (WA), which is also in broadly comparable terms to the New South Wales legislation. The issue to be determined was whether or not there existed a "reasonable excuse" for police officers not having tape-recorded admissions allegedly made by the accused Coates during a break that occurred in the course of a interview. The accused had consented to the interview itself being videotaped and, up until the time at which the break was taken, had made no admissions. The trial judge found that the accused had requested the break and that he had not consented to the videotaping of what had occurred during it. However, no request was made for him to adopt the admissions when the interview resumed. The evidence of the confessional material was nevertheless held to be admissible. The High Court decided, in a majority decision, that there was no "reasonable excuse" for the failure to record the "off-camera" conversation. Each of the judges in the majority referred, with approval, to what had been said in Kelly (supra) about the legislative purpose in enacting provisions such as the one under consideration in that case. McHugh J went on to say:
Both the natural and ordinary meaning of "interview" and the purposive construction of s 570D favour interpreting that term in s 570D(4) to cover the entire time during which Coates spoke with and was questioned by the police. The term "interview" is used only in s 570D(4): the rest of the section refers to "any admission" or "the admission" or "an admission" without specifying that the admission must be made in the course of an interview, that is, without designating the occasion of the admission. The policy of the section is that no admission is admissible unless it falls within one of the three paragraphs in s 570D(2). Paragraph (b) -- the reasonable excuse exception -- is the relevant exception in the present case. That paragraph declares that "evidence of any admission ... shall not be admissible unless ... the prosecution proves ... that there is a reasonable excuse for there not being a recording on videotape of the admission". Reasonable excuse includes that the accused "did not consent to the interview being videotaped".
The natural meaning of "interview" in s 570D is the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a "serious offence". …
A purposive construction also supports interpreting "interview" to mean the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a "serious offence". Such a construction assists in having a record of the entire discussion between the police officer and the accused on a particular day at a particular place instead of records of parts of the discussion. In accordance with the policy of the section, it also reduces -- although it cannot eliminate -- the occasions for disputes between accused persons and police officers as to what was said in "interviews", particularly interviews at police stations. A purposive construction also provides an incentive to police officers to have off-camera admissions recorded or at all events referred to when recording resumes.
Hence, by interpreting "interview" to cover all exchanges between Coates and the police while he was under caution, s 570D applies to the times when filming was suspended. Because Coates did not withhold consent to the entire series of exchanges being videotaped, his refusal to consent to some of the exchanges being videotaped (if he did) did not fall within the meaning of "reasonable excuse" as defined in s 570D(4)(c).
Nor do the circumstances of the disputed admissions warrant their admission under the umbrella of "reasonable excuse" independently of the inclusive exceptions in s 570D(4). The focus of any inquiry directed to the application of the "reasonable excuse" exception must take account of the conduct of the police, as well as the fairness or otherwise to the accused of permitting the admissions to be admitted. In construing similar provisions in MDR, Wicks J held that the conduct of the police officers was relevant to the question whether it would be "in the interests of justice" to admit evidence of admissions by the accused. His Honour thought relevant matters included whether non-compliance with the provisions was deliberate or the product of a reckless disregard of the provisions or was inadvertent or otherwise excusable. Such matters are also relevant in determining whether there was a "reasonable excuse" for not recording the admission. Most importantly of all, however, is whether the officers attempted to have the off-camera admission recorded. If, on-camera, the accused denies making an off-camera admission, it will be highly relevant in determining whether there was a "reasonable excuse" "for there not being a recording on videotape of the admission" (s 570D(2)(b)). …
In this case, Hawley admitted in cross-examination that he had encouraged Coates to speak off-camera, that he deliberately chose to continue the interview off-camera and that this was not proper or careful practice. Hawley also admitted that it would have been possible during the second break in videotaping to have the video turned on and the disputed conversations recorded. Hawley did not say that Coates refused permission to do so. Moreover, there was apparently no attempt by the police, once the videotaping resumed, to have Coates confirm his admissions on tape. The police made no contemporaneous notes of the off-camera conversations, and the notes that Hawley and Hutchinson wrote the following morning were later lost or mislaid. These circumstances indicate a departure from proper police procedure. …
Moreover, even if the off-camera statements constituted an "interview" to whose recording Coates did not consent, the above circumstances made an overpowering case for the trial judge to exercise his general discretion concerning evidence unfairly obtained to exclude the evidence. The Legislature has set its face against admitting unrecorded admissions by suspects except in special circumstances. When interviewing police officers encourage the making of off-camera admissions, despite the presence of recording equipment, and then fail to refer to the admissions when the recording resumes, the policy of the legislation points strongly to excluding the admissions even though, if the officers' evidence is accepted, the case comes within an exception specified in s 570D(2). Given the legislative policy of recording interviews of suspects wherever possible so that disputes concerning admissions can be reduced to a minimum, attempts to avoid the effect of that policy should be perceived as unfair attempts to obtain evidence and such evidence should be excluded. (footnotes omitted) (paras 102, 104-108)
32 Gummow and Callinan JJ in a joint judgment said:
If claims by interviewing police officers, that they "did not initiate" an alleged off-camera interview were enough to constitute "reasonable excuse" for a failure to record admissions on camera, the purpose of the legislation could easily be frustrated. The decision of the Court of Criminal Appeal does leave open the possibility that police officers may choose to continue an interview off-camera (without seeking to have an accused afterwards repeat on-camera an admission then made) and seek to secure the admission of the unrecorded evidence on the basis of a contention that they believed the accused was "anxious" to speak off-camera, and that he had initiated the conversation .
There is also substance in the submission that the approach of the Court of Criminal Appeal of Western Australia would add to the definition of "reasonable excuse" a definition neither stated nor intended by the legislature, such as, "an admission made during an interview not initiated by the police" or "an admission that a person was anxious to make off-, but not on-camera," a definition which, if adopted, would defeat the purpose of s 570D . …
What occurred in this case answers none of the explicit descriptions of reasonable excuse contained in s 570D(4)(a), (b), (c) or (d). The appellant did not refuse to consent to his interview being videotaped. We do not overlook that "reasonable excuse" is inclusively defined, and that therefore circumstances not within the explicit definition might still give rise to a reasonable excuse. In our opinion, however, what occurred falls so far short of, and is so different from, any of the defined circumstances that it could not amount to a reasonable excuse; nor could it be objectively regarded as a reasonable excuse. No attempt was made by any police officer to have Coates repeat on-camera what he was alleged to have said off-camera even though there was a reference to what he might say when the video resumed. It has been submitted however that the admission was made when it was not practicable to videotape it. We disagree.
The fact, if it be a fact, that Coates "was anxious to speak off-tape" cannot of itself provide a "reasonable excuse". Anxiety to speak off-tape, especially during a suspension of a lengthy interview on tape, in the absence of unwillingness to consent to the videotaping of the "interview", could not of itself, as here, possibly constitute a reasonable excuse. (footnotes omitted) (paras 152-3, 156-7)
33 In a separate judgment Kirby J, agreed with Gummow and Callinan JJ that the evidence of the police officers did not provide a "reasonable excuse" as to why the off-camera conversation had not been recorded.
34 In Carr v Western Australia [2007] HCA 47; 232 CLR 138 the accused participated in a video-taped interview during the course of which he made no admissions. The interview then ended to enable the accused to have a lawyer present. Whilst routine administrative tasks were being undertaken, the accused and the police engaged in conversation during the course of which the accused did make admissions. The accused was unaware that the conversation was being recorded. In a joint judgment, Gummow, Heydon and Crennan JJ, rejected a submission that the conversation was not an "interview" for the purposes of the relevant legislation. Their Honours said:
The vice to which the appellant's construction leads is that police
officers could attempt to evade the statute by informal off-camera
discussions with suspects during which unrecorded admissions were made, in the belief that the requirement of videotaping did not apply to "informal" discussions and that the circumstances would provide a "reasonable excuse" within the meaning of para (b) of s 570D(2).
The appellant's challenge based on the definition of "interview" fails. The Court of Appeal was correct in determining that the meaning of "interview" encompassed any conversation between a member of the Police Force and a suspect, and included an informal conversation initiated by the suspect . (paras 61-2) (emphasis added)
35 In R v Naa [2009] NSWSC 851, police had been called to attend a scene at which the accused had stabbed and killed his estranged wife. The accused was armed and was acting in a threatening fashion. During the course of a "stand-off" with police the accused made various admissions. After embarking upon an exhaustive analysis of the relevant authorities, Howie J concluded that the conversation was not "in connection with the investigation…of the commission of an offence" and that accordingly, the section did not apply. His Honour also found that there was, in any event a "reasonable excuse" for the failure to record the conversation. It lay in the exigencies of the situation and arose from the fact that the officers' primary focus was upon providing protection for themselves and others who were at risk of being injured by the accused. His Honour also was referred to his own earlier decision in R v Sharp (2003) 143 A Crim R 344. Although that decision turned largely upon the meaning of the expression "official questioning", his Honour observed:
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.
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 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. (emphasis added) (paras 19-21)