R v Browne [2000] TASSC 105

Criminal Law - Evidence - Confessions and admissions - Statements - Records of interview - Other matters - Admissibility of admissions if requirement for video taping not satisfied - Whether fact that admissions are not disputed amounts to an exceptional circumstance justifying the admission of the evidence.

R v Arnol (1997) 6 Tas R 374; R v McKenzie 36/1999, referred to.

Criminal Law (Detention and Interrogation) Act 1995 (Tas), s8(2)(d), (3).

Judgment Number: [2000] TASSC 105

The accused was indicted for three sexual offences arising out of an incident in which the 23 year old accused has admittedly engaged in sexual intercourse with a 14 year old girl in his bedroom. Shortly after the complainant's evidence had been concluded, the Crown in effect conceded that absence of consent could not be established and by the time the Crown sought to call the evidence the subject of this Ruling, the only real issue was whether the accused had an honest and reasonable belief that the complainant was over the age of 17 years.]

1 The Crown seeks to prove three statements made by the accused which were not recorded on video tape or subsequently acknowledged on video tape. They were made either at the accused's home or on the way to the police station. The first is a statement to the effect, "I've got a 19 year old girlfriend in Devonport, why would I want to play around with a girl like that." This was said in the bedroom where the offence was alleged to have occurred. The accused disputes that it was said by him after a caution had been delivered. He has given evidence on the voir dire that no caution was given. Two police officers swear to the contrary. The second statement was also made in the bedroom and was, "They know the house. I don't know their name. One of them lives in Stirling Street I think." The third, made while in a police car on the way to the police station, was a negative reply to the question, "Have you had intercourse on your bed recently?" It seems to be common ground on this trial that the accused did have intercourse with the complainant on his bed and the real defence is that he believed on reasonable grounds that she was 17 or over that age.

2 Are any of these statements admissions? Zeeman J, in R v Arnol (1997) 6 Tas R 374, pointed out that the Criminal Law (Detention and Interrogation) Act 1995 ("the Act") does not apply to statements which are not confessions or admissions. None, in my view, can be said to be a confession, but as Zeeman J said at 381:

"... a communication will amount to an admission for the purposes of s8 if it admits to a fact which, taken in conjunction with other facts, may be probative of the guilt of the accused."

In respect of the first statement, I am of the view that it does amount to an admission. The issue on which guilt or innocence will turn is his belief as to the complainant's age. A statement suggestive of a belief on his part that the complainant was significantly less than 19 and hence might well be less than 17 may well be decisive in respect of that issue. It is certainly probative of it and it is clear that that is why the Crown seeks to lead it. The second statement is more difficult of classification, but on balance I am of the view that his statement does suggest a paucity of knowledge of the girls who had visited him, which is probative of the absence of belief that the complainant was three years or more older than in fact she was. Accordingly, I regard that as an admission. The third statement is entirely exculpatory and cannot be regarded as an admission. However, although the Act does not apply to it, other considerations may dictate its exclusion.

3 The Act, s8(2)(a) renders evidence of the first and second statement inadmissible unless there is available to the Court a videotape of an interview with the accused in the course of which those admissions were made. Under par(b) there is an exception to this requirement if, firstly, the prosecution proves that there was a reasonable explanation as to why the videotape referred to in par(a) could not be made and secondly, other conditions are fulfilled. Paragraph (b) therefore requires, as a condition precedent to admission, that there be a reasonable explanation as to why the admission could not be videotaped. The Act, s8(3) says:

"For the purposes of subsection (2), "reasonable explanation" includes but is not limited to the following:

(a) the confession or admission was made when it was not practicable to videotape it;

(b) equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person;

(c) the accused person did not consent to the interview being videotaped;

(d) the equipment used to videotape the interview malfunctioned."

Only par(a) is relied on in the present circumstances, the other paragraphs not being appropriate.

4 The only direct evidence I have as to the impracticability of videotaping the interview in which those admissions were made is that there were no means of doing so. The surrounding circumstances do not enable me to draw an inference, on the balance of probabilities, that it was impracticable to do so. This is not a case where an admission was made to a person in authority who happened upon a suspect at or near the scene of a crime (R v Julin [2000] TASSC 50; R v Haas 6/1997; R v McKenzie 36/1999). A complaint of rape had been made to police and the Criminal Investigation Branch notified. Two detectives and a third police officer from the uniformed branch had been despatched to the accused's home to request his presence at the Burnie Criminal Investigation Branch for formal interview and to take from the home where the crime had allegedly taken place any exhibits such as clothing and bedding which might be relevant. No explanation was offered as to why it was impracticable not to take a video camera to record any admissions made away from the Criminal Investigation Branch interview rooms. If the householders had objected to its use, that might have rendered it impracticable to use it or if there was no portable camera available, that, too, might well have satisfied the paragraph, but the only explanation offered was that at the time they were in the house there were no means by which the conversation could have been videotaped.

5 The only other basis upon which it was submitted that admissions would have been admissible is s8(2)(d) which permits their admission if the Court is satisfied there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence. The only circumstance relied upon is that in respect of two of the admissions the accused in cross-examination on the voir dire admitted that he had made them. However, he claimed that the statements were made in a context which was not recorded in writing by the police. No doubt the Act was primarily intended to overcome the problems associated with disputed confessions and admissions where an accused person often had to contend with allegations that verbal admissions were made. However, as drawn, it applies not only to disputed verbal admissions, but to written and signed or otherwise acknowledged admissions as well. On the face of it, the Act applies to admissions whether or not they are disputed. Although two of these are not disputed, the fact that a caution was administered prior to their being made is disputed and that is a circumstance which argues in favour of the Act being strictly applied, as does the circumstance that the context is not fully recorded. Wright J in R v McKenzie (supra) at par 12 said:

"For there to be exceptional circumstances justifying the admission of the contested evidence, there must be some feature which renders the circumstances out of the ordinary."

At par 13, he cited Zeeman J's comments in R v Arnol (supra) "courts should be slow to admit evidence in reliance of s8(2)(d)". I do not regard as an exceptional circumstance requiring their admission in the interests of justice the fact that the making of the admissions in this case is not disputed. I rule that the evidence is not admissible because it does not comply with the Act.

6 In respect of the third statement which was made after the accused had spoken to his solicitor and the police being present heard him repeat the advice the solicitor had given him not to say anything, I exercise the discretion not to admit evidence of it on the basis that it would not be fair in the circumstances to admit it on his trial. The police realised he had been given advice not to answer their questions and although they quite properly sought answers to questions in front of the video camera at the police station and sought an acknowledgment of the admissions made earlier, I consider that asking any questions in the police car with that knowledge and without the delivery of any further caution was calculated to lead to unguarded responses which it would be unfair to admit on trial. I have said "further caution" because on the Crown case there was a caution back at the house. However, this was denied by the accused and the giving of it not being recorded on video at the time and not being acknowledged subsequently on video, it remains a case of the word of the two police officers against his. The third police officer who acted as scribe was not called and he did not record the giving of a caution in his notes. I am not prepared to disbelieve the accused in respect of this matter and that provides an added reason for exercising my discretion in his favour.