R v Barklimore [2007] ACTSC 3

3. On 1 August 2005 a report was received by Senior Constable Deborah McInerney, who was then on patrol with probationary Constable Peter Zegenhagen, that a person had been struck by a motor vehicle at Kimberley Gardens, Wanniassa in the Territory.

4. They attended the scene and took preliminary statements from witnesses, including Roger Walters, the alleged victim. The latter appeared to have suffered some injuries but was not seriously hurt.

5. There was also present at the scene a Holden Commodore sedan ACT registration, YCU 04Y. It appeared to have been involved in the alleged collision with Mr Walters.

6. Enquiries revealed that the vehicle was registered to the accused so the officers proceeded to the address of the accused in order to speak with him concerning the reported incident.

7. On arrival, they spoke to the accused's partner. She attracted the attention of the accused. He attended at the back gate where the police officers were. It was then dark.

8. There was a conversation in the following terms:

McInerney: Are you Stephen Barklimore?

Accused: Yes

McInerney: I need to speak to you about a car accident that happened today. We're making inquiries in relation to an incident that happened at McBryde Crescent.

Accused: Yes, I've got an explanation.

McInerney: No, I don't want you to talk to me now.

9. Constable McInerney, in evidence, said she then cautioned the accused, referring to the "criminal caution" required by s 23F Crimes Act 1914 (Cth) ("Crimes Act 1914"). She then shone her torch in his face and said either "Do I know you?" or "Have I met you before?". The accused replied, "Yes, I know your brother." Her evidence continued:

I'm pretty sure I cautioned him and said, "Look, I'm not going to talk about what happened now. Are you willing to come to the police station tomorrow morning and talk about it?"

10. The accused agreed and she arranged for him to attend at 9.00 am on the following day.

The Proceedings at Tuggeranong Police Station

11. Constable McInerney, on the next day, attended the foyer of the Tuggeranong police station. The accused was there. It was then, according to Constable McInerney, "either 9 or 9.30". She was accompanied, she said, by Constable Zegenhagen. She asked the accused if he was prepared to participate in a record of interview. He agreed. She continued:

I cautioned him and said that I didn't want to speak to him about anything that had occurred until we were actually in the interview room.

12. She then, "as an afterthought", inquired about the clothing he was wearing the previous day. The accused responded that it was at home and about to be washed. He agreed to go and get it. He left the station and about half an hour later returned with a bundle of clothing.

13. She conceded that she was only "50%" sure that Constable Zegenhagen was then with her. She did recall warning the accused that the interview was likely to be "fairly rigorous". She recalled them going down the corridor after entering the "secure area" and then proceeding to "the interview room".

14. Whilst the tape machine was being set up to record the interview, she said, "there would have been the preliminary questions". She could not recall what they were, but agreed that they were not the "preliminary questions" recorded in the interview itself.

15. The record of interview was then conducted, being recorded as required by s 23V Crimes Act 1914. It is objected to in its entirety, not by reason of any failure to give the required cautions concerning the rights of a suspect, but because, it was alleged, there had been improper questioning, not recorded, preceding that recorded interview, which induced the accused to respond to the questioning that was then recorded. In any event, Mr Pappas, for the accused, submitted, if the previous questioning formed part of a continuous episode of questioning, even if only part of it was unrecorded, the whole should be excluded unless the discretion conferred upon the court by s 23V(5) Crimes Act 1914 was to be exercised in favour of the admission of the evidence.

16. Section 23V Crimes Act 1914 provides:

Tape recording of confessions and admissions

(1) If a person who is being questioned as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:

(a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission--the questioning of the person and anything said by the person during that questioning was tape recorded; or

(b) in any other case:

(i) when questioning the person, or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person during questioning, of the things said by or to the person during questioning; and

(ii) as soon as practicable after the record was made, it was read to the person in the language used by him or her during questioning and a copy of the record was made available to the person; and

(iii) the person was given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading; and

(iv) a tape recording was made of the reading referred to in subparagraph (ii) and of everything said by or to the person as a result of compliance with subparagraph (iii), and the requirements of subsection (2) were observed in respect of that recording; and

(v) before the reading referred to in subparagraph (ii), an explanation, in accordance with the form in the Schedule, was given to the person of the procedure that would be followed for the purposes of compliance with that subparagraph and subparagraphs (iii) and (iv).

(2) If the questioning, confession or admission, or the confirmation of a confession or admission, of a person is recorded as required under this section, the investigating official must, without charge:

(a) if the recording is an audio recording only or a video recording only--make the recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording; and

(b) if both an audio recording and a video recording were made--make the audio recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording, and inform the person or his or her legal representative that an opportunity will be provided, on request, for viewing the video recording; and

(c) if a transcript of the tape recording is prepared--make a copy of the transcript available to the person or his or her legal representative within 7 days after the preparation of the transcript.

(3) Where a confession or admission is made to an investigating official who was, at the time when it was made, engaged in covert investigations under the orders of a superior, this section applies as if the acts required by paragraph (1)(b) and subsection (2) to be performed were required to be performed by the official at a time when they could reasonably be performed without prejudice to the covert investigations.

(4) Despite any arrangement made under the Commonwealth Places (Application of Laws) Act 1970, this section applies to any offence under a law applied by that Act if the investigating official is a member or special member of the Australian Federal Police.

(5) A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.

(6) A court may admit evidence to which this section applies even if a provision of subsection (2) has not been complied with if, having regard to the reasons for the non-compliance and any other relevant matters, the court is satisfied that it was not practicable to comply with that provision.

(6A) To avoid doubt, subsection (6) does not limit subsection (5).

(7) If a judge permits evidence to be given before a jury under subsection (5) or (6), the judge must inform the jury of the non-compliance with the requirements of this section, or of the absence of sufficient evidence of compliance with those requirements, and give the jury such warning about the evidence as he or she thinks appropriate in the circumstances.

17. Following the recorded interview a DNA sample was taken with accused's consent. The participants in the interview then went to Kimberley Gardens where the accused participated in a "walk through" which was also recorded as required by s 23V Crimes Act 1914. A video recordist attended to operate the video camera equipment. The term "walk through" was a reference to a demonstration by the accused of what he said had occurred on 1 August 2005. His actions and comments were recorded by video.

18. The accused then returned with the officers to Tuggeranong Police Station where he was charged. He was not given bail by police but was bailed by the Magistrates Court the next day. After that bail hearing he was then approached by Constable McInerney who obtained his agreement to be examined by a Commonwealth Medical Officer.

19. The medical practitioner so nominated was in fact a police physician and, as later emerged, the examination was for the purpose of obtaining incriminatory evidence, although the accused was led to believe that the purpose of it was to record evidence of the injuries he claimed to have suffered in the course of the incident at Kimberley Gardens on 1 August 2005. More particularly, in the course of the taped interview, the accused had given an account consistent with being assaulted whilst in his car and suffering a momentary loss of consciousness during which his vehicle travelled backwards, jolting into something which would seem to have been both Mr Walters and a carport wall. That hypothesis Constable McInerney believed to be medically questionable.

20. The initial opinion she obtained was explored under cross-examination by Mr Pappas:

And she [the doctor] told you, did she not, that following that examination she could not commit one way or the other in support of or against the proposition that Mr Barklimore may have had a genuine loss of memory between being struck through the window and feeling the thud at the back of his car? --- She told me that the injuries - she did not expect that the injury - the injuries she examined - sorry, she would have expected other injuries, including bruising and so forth, under the eyes, had Mr Barklimore's version of events occurred but ---

... But she was non-committal in regards to him having lost consciousness.

Thank you. You agree with that, don't you? She told you, "I can't say one way or the other?" --- That was one of the things she told me, yes.

21. Clearly, Constable McInerney reasonably suspected that the accused had been the driver of the vehicle earlier on 1 August 2005 and had concluded that it was "possible" that she would arrest him for deliberately driving into Mr Walters.

22. She agreed that, on recognising the accused, she had said to him, "Steve, what have you done?" or something to like effect. She did not then recall whether she cautioned the accused, though it was her intention not to ask questions about the incident until a recorded interview could be effected. Notwithstanding that, the following exchange occurred with Mr Pappas:

And you know, beyond any shadow of a doubt, that you did not formally caution Mr Barklimore that night at about 10 o'clock at his house, don't you? --- Actually, no, because what I do recall is him saying "I've got a - I've - I can explain it" or "I've got a reason" and I did caution him. I recall that now.

23. It is apparent that Constable McInerney made no note of or any previous reference to having then cautioned the accused. I have no doubt she did not do so, at least not in the terms referred to in s 23F Crimes Act 1914 and I find it difficult to understand why she pretended to have done so, save, perhaps, that she believed, in hindsight and mistakenly, that it would be better if she had done so. She did tell him not to say anything until it could be recorded. That could be construed as a "caution" but it is clear that that was not what Constable McInerney was referring to in that exchange. She was suggesting that there was an additional caution in the terms referred to in s 23F Crimes Act 1914.

24. She also agreed not only that she had asked the accused to attend the police station at 9.00 am but also that he attended at that time. She did not disagree with a suggestion that the accused arrived at 8.50 am. Then this exchange occurred:

Now a few moments ago of course you did volunteer some further conversation. Do you remember giving that in your evidence only a couple of minutes ago? --- What was that? Didn't you say again that you'd cautioned him? --- Yes, I had.

That was another formal caution, was it? ---

It would have been, yes.

Well you say it would have been. I take it from that you've got no note of it anywhere? ---

That's right.

26. Constable McInerney conceded she may not have given evidence of such a caution on any prior occasion, but claimed that was because she had not earlier been asked about it.

27. It may be that nothing turns on this but the accused should have been cautioned that he was not obliged to obtain the clothing in question or to do anything with it in the terms required by s 23F Crimes Act 1914.

28. In addition to claiming that she had cautioned him before requesting him to get the previous day's clothing, Constable McInerney, in chief, said, "I cautioned him and said that I didn't want to speak to him about anything that had occurred until we were actually in the interview room."

29. In cross-examination by Mr Pappas, she conceded that she did not know if she said that to the accused or not. It is likely that her "caution" at that stage was to tell the accused not to speak at all about the matter until it was ready to be recorded.

30. She did agree that, after leaving to get the clothing, the accused returned with it about 15 minutes later, though "possibly longer". She had previously agreed with half an hour as being that period of time. Though denying that, in conversation before the recorded interview, there had been conversation about getting a lawyer and saying that might slow things up, she agreed that the accused had stated that he was anxious to complete the interview process so he could return to work. She denied representing to him that he would be out of the station by the afternoon or that she told him he would get bail.

31. In fact, the watch house sergeant refused to grant bail. The next day, however, Constable McInerney agreed with the prosecutor before the Magistrates Court, that bail should not be opposed.

32. Mr Pappas then put to Constable McInerney that, at the police station, after surrendering his clothing of the previous day, the accused, following an invitation to tell her what happened, launched into a long monologue to the same effect, though in less detail, as he gave in the record of interview.

33. She agreed, also, that, in the front office, there had been a conversation concerning the nature of the questioning to follow and agreed that she assured the accused that, whilst she would be "rigorous", the questioning would be "fair". That conversation was not noted either.

34. Mr Pappas did, during cross-examination of Constable McInerney on 24 October 2006, correct the suggestion he had made that the conversation eliciting the accused's account of what happened from him had occurred in the foyer. He corrected that suggestion, putting to Constable McInerney that the accused, before being taken to the fully equipped interview room, had been placed in a holding room, referred to as an "informal" interview room, and that the conversation suggested occurred there. That room was apparently so referred to because it was not set up for electronic recording of conversations.

35. Constable McInerney conceded that the accused may have been placed in such a room during a break in the recorded interview but firmly denied that he had been so placed before that interview commenced. I have to say, however, that, despite that denial, Constable McInerney seemed to be quite evasive as to whether she was conscious that such a suggestion would be made or whether it was a surprise to her.

36. Constable McInerney also rejected a suggestion that she represented to the accused, in response to his expressions of anxiety, that he would be free to go after the interviews were completed. Nevertheless, she did concede that she had suggested to the watch house sergeant that bail should be granted. Nevertheless, she denied apologising to the accused following the adverse result of her submission to the watch house sergeant.

37. It appears that the accused was not placed under arrest until after the "walk through" at Kimberley Gardens. Constable McInerney, it is apparent, was conscious of the limits on the investigation period prescribed by s 23C Crimes Act 1914.

38. It was a curious feature of the recorded interview, preceding the "walk through", that there were no questions at its conclusion directed to negativing inducements, threats or promises. In evidence before me Constable McInerney sought to explain that as an oversight but had explained it at committal as the tape stopping early and not recording that part of the interview. It was clear to me that Constable McInerney was simply guessing at an explanation for that omission. It did not assist her credibility that she did so.

39. Nor was her credibility assisted by the fact that, as she conceded, she did not initially disclose to the DPP the inconsistent opinions Dr Thornton gave, relying only on the more inculpatory written report, though, it may be, as she claimed, she failed to understand the difference. I do not accept that before sending the accused to retrieve his clothing or otherwise in the front office of the police station, she cautioned him as required by s 23F Crimes Act 1914. Her purpose, she said, was to avoid any discussion of the incident until the tape was running in the interview, yet she claimed to have administered a caution which invited a response. Despite that, she ultimately conceded that she did not caution the accused before he went to get the clothing. That was the only circumstance which, if her evidence had been accurate, would have, up to that point, called for a caution in the terms referred to in s 23F Crimes Act 1914.

40. Constable McInerney's evidence was substantially corroborated by Constable Zegenhagen. He did not, however, support Constable McInerney's evidence that she had, prior to the recorded interview, cautioned the accused. He did not purport to have a clear recollection of any unrecorded conversation. Indeed the paucity of his capacity to recollect anything accurately is illustrated by the following exchange:

She [Constable McInerney on 1/8/05] told him [the accused] that she was about to go off shift? --- Yes.

You do remember that don't you? --- Yes, well there were other considerations I suppose she had at the time.

Don't worry about supposing anything, do you remember her saying words to the effect ... I'm about to go off shift? --- I can't recall Constable McInerney saying that.

41. Though he had purported to recall the "caution" being administered on 1 August 2005 Constable Zegenhagen, for some reason, thought it necessary, on 2 August 2005, to ask Constable McInerney if she had cautioned the accused the previous night. He eventually agreed that he asked that question because, contrary to his earlier evidence, he was unsure whether the accused had been cautioned.

42. Constable Zegenhagen asserted that he was continually in the accused's company from the time he left the front office until the conclusion of the record of interview. That would deny to Constable McInerney the opportunity to interview the accused, even if relatively briefly, on his own.

43. However, Constable Zegenhagen was quite vague as to whether any and, if so, what conversation preceded the recorded interview. He made no note to support any recollection he may then have had. His reason for rejecting any opportunity having existed for Constable McInerney to be alone with the accused was somewhat curious. He said:

Well, your Honour, Senior Constable McInerney is a female officer, it would be my job as a male to be with her at all times.

44. He was, however, prepared to assert that the "walk through" started at 12.45 pm. The taped interview is recorded as concluding at 12.24 pm. He agreed that it was, therefore, unlikely that his assertion could be accurate. Indeed, Constable McInerney's written statement asserts that their arrival at Kimberley Gardens was 1.20 pm. The taped record of conversation at Kimberley Gardens was not logged as to time.

45. In the circumstances, I do not feel confident that I can rely upon Constable Zegenhagen's recollection to support Constable McInerney's denial that there was an unrecorded conversation concerning the issues involved in the events of 1 August 2005 preceding the recorded interview. I believe he was simply guessing at what details he needed to corroborate in order to support Constable McInerney's evidence whatever it might be.

46. The report and evidence of Dr Thornton did little to detract from the disquiet I felt at the conclusion of the police evidence.

47. Her evidence was inconsistent as to whether she had or had not been asked, before commencing her examination, to test the hypothesis that the accused had lost awareness between receiving a blow to the head and his vehicle travelling backwards and striking Mr Walters.

48. She agreed that, as at 4 August 2005, it would be unlikely that signs would then be observable to support the accused's claim of loss of awareness. Hence her report stating "I can find no evidence of a head injury sufficient to cause a blackout or inability to remember" was disingenuous to say the least. It certainly provided no basis upon which the accused's statement to Constable McInerney could be controverted. Indeed, she had orally reported to that effect to Constable McInerney immediately after the examination.

49. The accused then gave evidence. He deposed that, apart from agreeing that he was the owner of the Commodore sedan found at Kimberley Gardens, the conversation on 1 August 2005 was much as Constable McInerney asserted that it had been. The only major difference was that he asserted no criminal caution was administered. I have already indicated that I do not believe Constable McInerney's assertion to the contrary.

50. He stated that he, in fact, attended the police station the next day, as he had promised, but arrived early "at 8.30 am". He waited 5 - 10 minutes, he asserted before being attended to by Constable McInerney. There was then a conversation including the reference to his clothing. Again the only major difference is as to whether a formal criminal caution was administered by Constable McInerney and, again, I do not believe her assertion as to that matter. I do not consider the accused's assertion as to time to be more than approximate.

51. He handed over the clothes on his return. They were taken by Constable Zegenhagen. The accused was then escorted by Constable McInerney to a room. A short time later Constable McInerney, having left him alone for a few minutes, entered the room. He said:

Constable McInerney came in and sat down, and she told me that I - the reason I was there, for the incident the day beforehand, to conduct a taped record of interview.

Was anything else said at that stage? --- She also told me that later on in the day that I would be - they'd be conducting a walk-through video unit at the scene of the crime - at the accident.

Anything else? --- She then asked me what I - would I like to tell her what happened the day beforehand.

...

Did you tell her anything? --- I did, I gave her a summary of what happened the day beforehand.

52. Apart from that, he also asserted that he had said to Constable McInerney "I just want to get this over and done with because I've got my work commitments. I need to get back to work as soon as possible." He asked, he said, "Do I need a lawyer?" The response, he said, was that it would save "time and the Police Department's money for me to just get it over and done with, instead of sitting around all day waiting for a lawyer".

53. Following the taped record of interview at the police station, he said, he was placed in a cell for about half an hour. He thought the "walk through" started about 1.00 pm. As I have noted, after 1.20 pm seems more likely, as was noted by Constable McInerney in her statement.

54. After the walk-through, the accused was returned to Tuggeranong police station, then taken to Civic where he was charged but refused bail. The sergeant told him that bail was opposed, but I do not believe, in context, that opposition came from Constable McInerney.

55. The next day, 3 August 2005, at the Magistrates Court, Constable McInerney and the prosecutor agreed that bail should not be opposed. Thereafter, the medical examination with Dr Thornton was held following the accused's consent being obtained. The accused said he thought the purpose of the medical examination was to document his injuries not to disprove his claimed loss of recollection between the blow to the head and the "thump" as the car hit something. It should be noted that there were warnings contained in the consent form whereby the accused acknowledged that he understood that his participation was voluntary.

The Admissibility of the Evidence of Questioning

56. In relation to the questioning on 2 August 2005 there are four episodes of questioning referred to in the evidence. The first is that which followed the accused's initial attendance at the Belconnen police station.

57. The term "questioning" includes the eliciting of non-verbal responses. Section 23F Crimes Act 1914 is therefore applicable to that questioning. It provides:

Cautioning persons who are under arrest or protected suspects

(1) Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.

(2) The investigating official must inform the person of the caution in accordance with subsection (1), but need only do so in writing if that is the most appropriate means of informing the person.

(3) Subsections (1) and (2) do not apply so far as another law of the Commonwealth requires the person to answer questions put by, or do things required by, the investigating official.

58. As I have explained, I am not satisfied that, before being asked to obtain clothing, the accused was so cautioned. It follows that the clothing was obtained in contravention of an Australian law. Thus s 138 Evidence Act 1995 (Cth) ("Evidence Act 1995") is engaged. Relevantly s 138(1) provides:

Discretion to exclude improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

59. Accordingly in relation to the request to the accused to obtain clothing, I am not satisfied that s 23F Crimes Act 1914 was complied with. Hence the result of that questioning will not be admitted into evidence. In the alternative, I am satisfied that the evidence obtained was obtained in contravention of s 23F Crimes Act 1914. Hence s 138 Evidence Act 1995 is engaged. The desirability of admitting the evidence would not, in any event, outweigh the undesirability of condoning the illegal means by which it was obtained. Further, the questioning was not recorded as required by s 23V Crimes Act 1914. It was practicable to have done so.

60. The evidence would be precluded unless s 23V(5) Crimes Act 1914 was satisfied. There are no "special circumstances" in this case to enable a conclusion that "admission of the evidence would not be contrary to the interests of justice". However, it is not clear to me that there is any intention to tender the clothing or anything concerning it so that may be a moot point.

61. The second period of questioning is the disputed conversation in the "informal interview room". If it occurred, it undoubtedly breached at least s 23V(1)(a) Crimes Act 1914. It should be added that there could be no contention, nor was any suggested, that taping that conversation would have been impracticable.

62. One indicator as to whether the disputed conversation occurred is the time lapse deposed to by the various witnesses. There is a discrepancy of up to 30 minutes, approximately, between the police officers' account and that of the accused. However, if the police officers' account as to timing is accepted, the accused arrived at 9.00 am, went away to collect his clothing and returned after a gap of approximately 20 minutes. Indeed, Constable McInerney accepted an estimate of 30 minutes at one stage but agreed it could have been as little as 15 minutes. The police officers' account has the three of them then repairing immediately to the interview room where the interview commences, in accordance with the logged time, at 10.00 am. Even allowing for a 10 minutes set-up period, there is a gap of 15 - 20 minutes unexplained. On the account given by the accused more time is unaccounted for. The "pre-interview" conversation if it occurred as the accused deposed would not have exceeded 10 minutes.

63. Given the extent to which the evidence of Constable McInerney was demonstrated to be unsatisfactory and the unconvincing evidence of Constable Zegenhagen it seems to me at least probable that some conversation such as that deposed to by the accused took place in the interval between his return to the police station and the commencement of the recorded interview.

64. Of course, there is no question of that conversation being tendered in evidence. The police officers deny that it happened. On the balance of probabilities, I accept that it did. The question is whether the holding and non-recording of that conversation renders the third and fourth episodes of questioning, which did comply with s 23F and 23V Crimes Act 1914, inadmissible.

65. Before proceeding to that question, I should record that I do not believe Constable McInerney set out to breach s 23V Crimes Act 1914. I believe that in the first conversation on 2 August 2005, she simply did not turn her mind to the need to record it. In any event, it seems to have produced no evidence upon which the prosecution proposes to rely. Nor was it referred to in the subsequent questioning so as to be part of it, if that be relevant.

66. As to the second conversation, I believe that Constable McInerney considered that it would assist her to conduct the recorded interview more efficiently to know, generally, what the accused would say. She expected the whole of that information to be taped and could see no disadvantage in having a "preview". She assessed, probably correctly, that the accused was anxious to cooperate.

67. Unfortunately, her assessment was legally wrong.

68. In Heatherington v The Queen [1994] HCA 19; (1994) 179 CLR 370, the High Court considered similar Victorian legislation. There had been, as here, a preliminary interview of the suspect, clearly intended to assist in directing further inquiries. Those enquiries were made and a full recorded interview then ensued during which admissions were made.

69. The High Court (Mason CJ, Deane, Toohey and McHugh JJ) found that the two periods of questioning could be regarded as separate so that the record taken in the period which yielded the admissions could be admitted.

70. Mason CJ, Deane and McHugh JJ, at 376, rejected a submission that failure to record a pre-interview confessional statement was necessarily fatal to the admission of the recorded confessional statement:

Much to be preferred is a construction according to which the admissibility of a confession turns on a question of substance: whether the earlier questioning was part of the same questioning which produced the confession. If it was not, the fact that the earlier questioning was not recorded will not of itself preclude the reception of evidence of the questioning in the course of which the confession was made. The existence and circumstances of the earlier unrecorded questioning could, of course, be relevant to, and possibly decisive of, the question whether evidence of the confession should be rejected on unfairness or public policy grounds.

71. However, Brennan, Dawson and Gaudron JJ disagreed. They found the characterisation of the first conversation as a "lead up conversation" was sufficient to link the two.

72. Toohey J agreed with Mason CJ, Deane and McHugh stating at 387:

None of their Honours lost sight of the fact that, in the end, the issue was whether the earlier questioning was part of the questioning that was tape-recorded. It was necessary to look at the content of the earlier conversation as well as the time interval. If, for instance, the tape-recorded questioning picked up statements that had been made earlier by the applicant and built on them, it would be hard to conclude otherwise than that it was the same questioning. On the other hand, the absence of any reference to what had been said earlier is not conclusive against a finding that it was the same questioning. It would be all too easy for an investigating official to obtain answers at an interview which was not tape-recorded, then, without direct reference to those answers, use them as the basis for further questioning.

73. I observe that the reference to "confession" includes any statement or action which might tend to incriminate the accused. It is also apparent that the recorded conversations in this case make no direct reference to the lead up conversation. The accused agreed that he did not feel intimidated by either officer. Indeed, he was quite willing to volunteer his version of events. The recorded interview both in content and as portrayed on video confirms that impression. It could not be concluded that the third period of questioning was not voluntarily undertaken or was conducted unfairly. That, however, does not conclude the matter.

74. Reference was made to a number of decisions of this Court concerning partially recorded conversations tendered as admissions whether of recorded or unrecorded portions.

75. In R v Waters [2002] ACTSC 13 (15 March 2002), the unrecorded conversations included pressure on the accused to confess. Gray J regarded the whole of questioning as part of the one episode of questioning thus engaging s 23V Crimes Act 1914. Neither counsel addressed the application of s 23V(5) Crimes Act 1914.

76. In that case, it was accepted that the demeanour of the accused when interviewed was relevant to the application of s 85(2) of the Evidence Act 1995. That states:

Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

77. That subsection has application only if the evidence first passes the test prescribed by s 23V Crimes Act 1914. It did not but it was accepted that, had it done so, s 85(2) Evidence Act 1995 was satisfied by the prosecution.

78. I do not consider, in this case, that the truth of the statements made by the accused was at all adversely affected by the previous unrecorded conversation or any other relevant circumstance. Indeed, the prosecution has, as required by s 85(2) Evidence Act 1995, satisfied me positively as to that conclusion. However, s 23V Crimes Act 1914 is not satisfied merely because the truth of any admission made was unlikely to be adversely affected.

79. I also note the decision of Crispin J in R v Jackson [2005] ACTSC 127 (10 November 2005). In that case the accused had been questioned at work concerning an alleged assault. The accused identified a receipt allegedly provided to the assailant by the victim as bearing his signature. That was clearly incriminatory. The accused was then taken to Gungahlin Police Station where a taped record of interview was conducted. He reiterated his admission concerning the receipt.

80. There was no gap, other than the journey and setting up of recording apparatus between the two episodes of questioning. It was his Honour's conclusion as a matter of fact that the two admissions were made during the same course of questioning. The whole of the questioning was not tape-recorded, though, of course, the same admission appeared in the tape-recorded section as in the preceding unrecorded section.

81. Section 23V(5) Crimes Act 1914 was considered but his Honour could find no special circumstances by reason of which he could conclude that the admission of the evidence would not be contrary to the interests of justice.

82. His Honour came to a similar conclusion in R v Rees [2005] ACTSC 91 (23 September 2005). In that case the accused had been charged with drug offences. There had been a search of premises in the course of which incriminating evidence was located. There had been a conversation at the accused's place of employment. It was not recorded. A tape recorder had been available but was not used. According to the police investigators that was so as not to draw attention to the accused. Section 23V(1)(a) Crimes Act 1914 was therefore engaged. The conversation was, accordingly, inadmissible. However, in that case there was no other conversation containing the same admission, properly recorded, which was available to be tendered. It was simply a matter of excluding or not the unrecorded conversation. No issue arose as to whether the recorded conversation should be admitted. It contained nothing adverse to the accused. Section 23V(5) Crimes Act 1914 was not addressed.

83. The first question is whether the "questioning" in this case includes either or both of the first two episodes where questions were asked. I accept that it is for the accused to satisfy the court that s 23V(1) Crimes Act 1914 applies (see R v Raso (1993) 68 A Crim R 495).

84. In Smith v R (1996) 86 A Crim R 398, before being charged, the accused was twice interviewed "informally". That is, those interviews were not recorded as required by s 23V Crimes Act 1914. The accused himself requested a third interview which was properly recorded and in the course of which he made admissions. Both prior interviews were expressly referred to in the course of the third interview. The accused claimed that he participated in the third interview to protect his girlfriend from being charged. The Crown, in Smith, did not seek to rely on either of the earlier interviews but did seek to rely on the third. The trial judge declined to exclude that interview from evidence. The accused appealed.

85. In the Court of Appeal, Wallwork J, with whom Rowland J agreed and with whom Franklyn J substantially agreed, held that both s 23F and 23V Crimes Act 1914 had not been complied with.

86. Those non-compliances affected each of the first two interviews. There was evidence that police were aware of the desire of the accused to exculpate his girlfriend. Hence his request for a third interview after he had been charged was, to their knowledge, motivated by that desire.

87. Franklyn J pointed to the link between the three interviews apparent from the content of the third as well as the unfairness to the accused in not having a taped record of the first two so as to facilitate the evaluation of the voluntariness of the third interview.

... It would seem an absurd result that the inadmissibility effect of s 23V(1)(a) could be circumvented by the simple expedient of interrupting an interview not being taped in accordance with the Act, then re-commencing the interview at a later stage, either at the same or a different venue, taking advantage of matters not recorded to obtain admissions which were then recorded.

... because of the failure of the police officers to comply with the provisions of the Crimes Act, it was not possible at the voir dire or the trial, and it is not possible now, to decide whether or not the third interview was voluntary. For that reason it should have been excluded from evidence. In any event I would hold that it should have been excluded because it was taken after breaches of very important provisions in the Act which comprise public policy.

90. There is, in the present case, no doubt that the accused was at all times a "suspect". Indeed, it was, no doubt, for that reason that Constable McInerney, on 1 August 2005, was anxious to ensure that no admissions were made absent available tape recording facilities.

91. So far as the first episode of questioning on 2 August 2005 is concerned, it was, as I have stated, clearly in breach of s 23V Crimes Act 1914 and, as I find, 23F Crimes Act 1914. However, no reliance is placed on it. In any event, it is inadmissible as is the product of that questioning.

92. The second episode is more troubling. I accept that Constable McInerney had no intention of using that conversation in evidence. She saw it merely as providing her with a preview for the formal taped questioning. Nevertheless, it could not be otherwise than part of the "questioning" under s 23V(1) Crimes Act 1914 and have required, absent a s 23V(1)(b) Crimes Act 1914 circumstance, tape-recording. The failure to record it has the effect of depriving the court and the accused of any opportunity to impugn the voluntariness of the subsequent interview, particularly where, as here, the accused was given no opportunity to dispute the voluntariness of it by answering the usual questions on that issue at the conclusion of that third episode of questioning.

93. In any event, whatever the content of the non-recorded questioning it was as a matter of substance part of "the questioning" referred to in s 23V(1)(a) Crimes Act 1914. It follows that no admission or confession contained in it made by the accused is admissible.

94. That being the case, the remaining issue, so far as s 23V(1)(a) Crimes Act 1914 is concerned, is whether the Court should admit the evidence under s 23V(5) Crimes Act 1914. I do not believe that, in general, it would be contrary to the interests of justice to admit the evidence. On the video tape it seems to me that the accused was apparently freely answering questions. He was not in awe of the police officers. I do not conclude that the truthfulness of his responses was adversely affected by the non-compliant conversation. However, there was his anxiety to be cooperative in the expectation of early release from custody. The unrecorded interview might have shed some light on that. The test is whether I am satisfied that the admission of the evidence would not be contrary to the interests of justice. Thus whilst I am not satisfied it would be "contrary to the interests of justice" to admit the evidence; I cannot positively say that it would not be. The interests of justice, for this purpose, include marking disapproval of police misconduct both as to conducting unrecorded interviews and as to then denying that such an interview had taken place. Against that would have to be balanced the desirability of admitting relevant evidence which could properly support the prosecution case.

95. In any event, there are no special circumstances I can perceive relating either to the interests of justice or the circumstances surrounding the interviews enlivening the discretion to admit the evidence.

96. If the matter had fallen to be determined under s 85(2) Evidence Act 1995, I would have considered that s 85(2) Evidence Act 1995 would have been satisfied so as to enable the evidence to be admitted. However, that does not arise for decision.

97. So far as Dr Thornton's report is concerned, I find the examination leading to it was procured by deception. That deception negated the effect of the warnings as to the use to which the evidence might be put. It deprived the accused's consent to the examination of informed voluntariness. In any event, construed with the oral opinion later disclosed, it is apparent that the examination has no probative value and serves merely to provide a vehicle for Constable McInerney to express her disbelief as to the explanation given by the accused for the events of 1 August 2005.

98. It follows that the evidence deposed to orally and in writing by Dr Thornton was improperly obtained and, prima facié liable to exclusion under s 138 Evidence Act 1995. By reason of its lack of probative value it is not saved from exclusion by s 138(1). In any event, in my view, s 137 mandates its exclusion because of its potential to unfairly prejudice the accused. It follows that s 136 (general discretion to limit use of evidence) was also enlivened.

99. I rule accordingly that the recorded interviews of 2 August 2005 and the evidence of Dr Thornton are each inadmissible.

I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the respondent: ACT Director of Public Prosecutions