R v Christie [2003] WASC 151

Criminal law - Evidence - Police interviews with accused not video­taped - Whether admissible

1 ROBERTS-SMITH J: Rory Kirk Christie stands charged that on or about 16 November 2001 at Jolimont, he wilfully murdered Susan Margaret Christie. To that charge he has pleaded not guilty.

2 The trial is listed to begin on 15 September 2003. I am told there will be in excess of 100 Crown witnesses and the trial will take 6 weeks.

3 There have already been discussions between the Crown and the accused's legal representatives, as a result of which agreement has been reached on a number of evidentiary and procedural matters. There are some issues which have not been resolved in that way. Some of those were raised for my determination pursuant to s 611A of the Criminal Code (WA) at a pre-trial directions hearing on 6 August 2003. I reserved my ruling on that occasion, and I now give it.

4 The first matter raised concerns evidence to be given by a number of prosecution witnesses to which Ms Lonsdale for the accused objects as being inadmissible. Alternatively, she submits that the evidence should be excluded in the exercise of my discretion because its probative value is outweighed by its prejudicial effect and/or the admission of it would be unfair. The statements are generally of the nature that Susan Christie (who is referred to in argument as "the deceased" - although in the circumstances I take it that will be a fact in issue at the trial) told the witnesses of occasions on which the accused used violence towards her. I will elaborate on the particular statements in a moment.

5 It is necessary to understand the nature of the Crown case and the context in which the evidence would be given.

6 The accused and Susan Christie were married. Their relationship was an unhappy one, characterised by violence by the accused towards his wife. They separated. They had a young child, Fraser, in respect of whom there were contested proceedings in the Family Court. Those culminated in the accused being awarded custody of, and Susan Christie being granted access to, the child.

7 The hostility and enmity between the accused and his wife continued after their separation.

8 The accused told police that he last saw Susan Christie alive on the morning of 15 November 2001. Other people saw her later that day. There will be evidence that she caught a taxi that night and went to a bottle shop, after which she returned to her unit where she was last seen by her neighbours. There is also evidence that some phone calls were made from her unit shortly afterwards, but from that point she has not been seen nor heard from.

9 Police investigations were subsequently instituted. It is not necessary to detail them. There were a number of persons of interest. One of them was the accused. At a later stage, blood in Susan Christie's flat was analysed. The DNA profile matched hers. Blood was later identified on the tie of the accused; that also matched Susan Christie's DNA profile.

10 The Crown case is that at some stage in the evening of 15 November or shortly thereafter, the accused killed Susan Christie at her flat and disposed of her body.

11 Objection is taken to [42] to [45] inclusive of the statement of Ian Henderson Ure. Ure says there, that after their marriage broke down, Susan Christie told him the accused had been violent towards her on at least one occasion during that time. She told him the accused had broken her finger once and he will say he remembers seeing her with her finger, or a couple of fingers, bandaged very heavily for about a week or so. He says further that he is aware of an incident in which Susan Christie alleged that the accused had hit her and caused her to have a black eye, although he could not recall when this was. He does remember seeing her as the bruise was fading.

12 In [44] he says that he could not say conclusively that the accused caused the injury and that he had his doubts, as Susan Christie would often fall and trip as a result of her drinking. She often had scrapes and bruises on her from falls and had also visited hospital on occasion as a result of those falls. Finally, at [45] he states that if the accused had hit Susan Christie or physically assaulted her, he believes that he would have told him.

13 As to this last paragraph, Ms Sweeney concedes that the evidence would be inadmissible in that form, but that she would propose to adduce from the witness, evidence that the relationship between him and Susan Christie was such that she told him such things on a number of occasions, but at no time did she tell him the accused had assaulted her in such a way as to cause her to bleed. This would provide a foundation for the Crown in due course to invite the jury to draw the inference that the accused did not at any relevant time assault his wife in such a way as to cause her to bleed, because if he had, she was likely to have told Mr Ure. The relevance of that would go to show there was no earlier occasion on which the accused could have got Susan Christie's blood on his tie.

14 A similar objection is taken to evidence by Kelli Narelle Budrikis at [168] to [171], [173], [174] and [180] to [188] of her statement.

15 Some of that evidence would be to the effect that Susan Christie was fearful that the accused would leave the country with Fraser and would not come back and that she had said on a couple of occasions that she was thinking of putting a "port watch" on the accused. She told the witness on several occasions that the accused had threatened to return to Canada with Fraser and she would never see either of them again, that the accused had told Susan Christie that she was a terrible mother and a drunk and that she would never see the child again. She told the witness about violent abusive arguments, that the accused spat on her and bent her fingers back and called her terrible names. The witness would say that Susan Christie told her that she did not want the accused anywhere near her unit and would meet him outside because she was afraid that if he saw how small the inside was, he could use that against her in court by saying her accommodation was not suitable. Susan Christie told her that she and the accused always argued when he dropped Fraser off for his access visits and that the accused would be difficult with regard to every aspect of her custody rights with Fraser. Susan Christie constantly told her that she did not trust the accused and that he was capable of anything. She was frightened of what the accused would do when it came to Fraser and keeping her apart from Susan Christie.

16 Paragraph [25] of the statement of Sarah Henley is objected to. In that paragraph the witness says Susan Christie told her of a time when the accused had kicked her out of their house, and she was naked at the time. She recounted another occasion when she had her fingers bent back by the accused and he had spat on her girlfriend.

17 Ms Lonsdale objects to [188] to [190] and [192] to [193] of the statement of Dennis Austin. That witness says there, that Susan Christie told him the accused had made arrangements to take Fraser out of the country, but there was no way he would do that. He says she was adamant that she would have her children, that she was "... fucking sick of [the accused] fucking her around". She said that: "The arsehole has turned my son against me, he calls me Sue and the other woman Mummy". The witness says that in 1998/99 Susan Christie told him the accused had thrown her through a plate glass window and her parents had witnessed that as they were over from England at the time. I am told the parents would give evidence of such an incident, although Susan Christie's description of it to Dennis Austin is an exaggeration.

18 As Barwick CJ pointed out in Wilson v The Queen (1970) 123 CLR 335 at 337, the fundamental rule governing the admissibility of evidence is that it be relevant. All evidence which is relevant is admissible unless it is excluded by a particular rule of evidence. One such rule is that against the admission of hearsay evidence.

19 In Wilson v The Queen the Crown led evidence that the deceased in the course of quarrels with the accused had said to him in the presence of witnesses: "I only know you want to kill me for my money" and "I know you want to kill me, why don't you get it over with". The trial Judge held that evidence of the statements was admissible but cautioned the jury not to treat them as evidence of the actual state of mind of the accused. The High Court held the statements were admissible as they were relevant to show the relationship which existed between the deceased and the accused so as to explain the act charged and they assisted the jury to decide between explanations of the act tending to show that the wife was murdered or that she died as a result of an accident. At p 337 Barwick CJ observed that it was quite apparent the nature of the relationship between the applicant and his wife was relevant to the question to be decided by the jury. As his Honour said:

"Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility."

20 There is a distinction between evidence of quarrels which are merely expressions of transient anger or annoyance which have no character of long-standing emotion, and evidence of incidents, exchanges or conduct by either or both the parties to a relationship, which proceed from inveterate hostility or enmity. Evidence of the former would not be admissible; where it bears upon a fact in issue evidence of the latter would be (see Barwick CJ at p 338 ibid).

21 At p 339 the Chief Justice noted that it is not only in cases in which the evidence of the relationship of the accused with others tends to establish motive that it is admissible, although that may be the most common. If the evidence does tend to explain the occurrence, or, as in that case, to assist the choice between two explanations of it, then on general principles, because it is relevant, it is admissible.

22 Menzies J (with whom McTiernan and Walsh JJ agreed) said (at p 344):

"Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife."

23 Statements made by a person, in the absence of an accused, may be relevant to show that person's state of mind and if so, are admissible if the state of mind is in issue or goes to a fact in issue (Walton v The Queen [1989] HCA 9; (1987-1988) 166 CLR 283 per Mason CJ at 288, Wilson, Dawson and Toohey JJ at 300-305; Deane J at 307).

24 Even when the testimony is not that of the maker of the statement, but of a person who heard them make it, it is original evidence. It is not hearsay evidence at all (Mason CJ ibid at 289).

25 Thus, the Crown says here the statements the witnesses will say were made by Susan Christie have evidentiary value in proving the relationship between her and the accused (irrespective of the truth of the statements she made), which is relevant to the issue whether or not he killed her.

26 As it was put by the Privy Council in Ratten v The Queen [1972] AC 378:

"There mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on 'testimonially', i.e., as establishing some fact narrated by the words."

27 T (A child) v The Queen (1998) 20 WAR 130 was a case in which the prosecution relied on statements similar to those in the present case, for similar purposes. The prosecution sought to lead evidence of statements made by the deceased prior to her death. The trial Judge took the view that such evidence might assist with the drawing of an inference as to the deceased's state of mind and the state of her relationship with the accused, on the basis that common experience suggests that where one partner in a relationship consistently makes remarks which are disparaging to the other and are suggestive of dissatisfaction with the other, the relationship is likely to be in some difficulty, regardless of the accuracy of any particular statement. However, the statements and/or conduct must pass a test of relevance in order to be admissible. Pidgeon J (with whom White J agreed) said that although the trial Judge had referred to the deceased's state of mind, he saw that as no more than a step in determining the true relationship. The effect of the trial Judge's reasons for admitting the evidence was that it was relevant to the relationship and the jury had been so directed.

28 Pidgeon J set out the following passage in which the trial Judge gave reasons for admitting the evidence:

"The fact that the accused was apparently prepared to assault the deceased, effectively in the absence of others, shows a relationship which was by then far from loving and stable. It is, in my view, sufficiently proximate in time to the time of death, and tends to explain the second separation between the accused and the deceased and to explain the deceased's attitude, expressed to others, that when the relationship resumed she was effectively giving the accused 'a second chance'. In my view it is relevant and admissible. It is objected that it is prejudicial to the accused. Clearly there is a possibility for prejudice. Clearly the jury must be directed that such evidence may not be used for the purposes of establishing any propensity towards violence on the part of the accused. However, instances of this type are precisely those which also tend to show most forcefully how unstable the basis of the relationship was, and lend force to the inference which can be drawn from the deceased's later statements that she was trying to end her relationship with the accused. If evidence of this type is not admitted, there is a real danger that the jury will be asked to determine in a vacuum questions which can only properly be determined in the light of the knowledge of the relationship between the parties. I propose to admit this evidence."

29 Pidgeon J considered the evidence was admissible for the reasons given.

30 Ms Lonsdale referred me to the judgment of Ipp J in that case and to a passage at p 143 in which his Honour observed that, even though words may contain an implied assertion (in that case that there were difficulties in the deceased's relationship with the appellant) an element of hearsay need not necessarily result in the exclusion of the evidence, but its admissibility would depend upon the degree to which the evidence would be relevant and the extent of the prejudice to the appellant in admitting it with its element of hearsay.

31 I note that Ipp J was in dissent on this issue in that case. His Honour noted that usually when determining the admissibility of testimony of this kind, considerations of prejudice arising out of the hearsay element, have to be balanced against the degree to which the evidence would otherwise be relevant. His Honour quoted from the decision in R v Mackay [1985] VicRp 63; [1985] VR 623 at 633 that:

"It is rather important that a court should not slip into a habit of admitting (relationship) evidence which, reasonably viewed, cannot tend to prove motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties."

32 I would respectfully agree with that cautionary observation.

33 Ipp J took a different view to the majority on the result of the balancing exercise between prejudice and probative value. That of course, does not go to admissibility, but to discretion.

34 A further point advanced by Ms Lonsdale in support of her submission that admission of this evidence would be unfairly prejudicial, was that such unfairness was to be found in the fact that Susan Christie would not be available for cross-examination on the statements said to have been made by her.

35 A similar point was put forward in Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506. On that, Hayden JA (with whom Bell J agreed) said at [165] - [167]:

"... even if the inability to test the deceased by cross-examination can constitute prejudice, the issue is whether the reception of the evidence in this case was unfairly prejudicial. There is no reason to doubt that the deceased said what the witnesses told the court she said. Section 72 made the evidence admissible to prove her state of mind. The state of mind she represented herself as having was one which either she was sincerely representing or she was not - either it existed or it did not. If it existed, that tended to show a bad relationship with the appellant, because what she said was unlikely to remain secret from the appellant in the small and gossipy environment of Mathoura, and when it became known to him it would tend to stimulate ill-feeling: the fact that she said those things, even if insincerely, with indifference to the appellant's reputation and feelings, is a sign of the level and quality of the relationship. Either way the cross-examination of the deceased which it was not possible for the appellant to undertake would not have assisted him in an attempt to demonstrate that the relationship was sound and cordial. The evidence was not unfairly prejudicial by reason of the loss of an opportunity to cross-examine.

Further, the evidence complained of was not significantly more prejudicial than other evidence to the same general effect of which the appellant did not complain. To exclude the evidence complained of, but not the other evidence, would be to leave the jury with vague and generalised evidence about the appellant's state of mind, but not specific evidence about it.

The evidence would have been capable of causing prejudice if it could have been used to support a conclusion that the appellant had in fact threatened to kill the deceased or in fact intended to kill her before 7 February 1999. But the trial judge warned the jury against its use for that purpose. He said:

'This evidence is not capable of being used by you to conclude that at the time those words were said the accused had an intention to kill Miss Lock. That is not evidence of the truth of what she was saying it is evidence of a nasty relationship between them, if that is what you think it was, but no more than evidence of that.'

'You should understand that it is not the Crown case that the accused was a man who went about assaulting people and that he is therefore more likely to have murdered the deceased. That is not how this evidence is to be used. You must not use it in that way. It is not evidence that the accused killed the deceased.'

The integrity of jury trial must depend on an assumption that juries pay regard to the directions given. Nothing in the circumstances of this trial suggests that the jury did not do that. Any risk of unfair prejudice was negated by the trial judge's directions."

36 Although the question there fell to be determined under the provisions of the Evidence Act 1995 (NSW), the principles reflected in the passage quoted above are, in my view, consistent with common law as it applies in this State.

37 I now turn to the particular objections made here.

38 Paragraphs [42] and [43] of the statement of Ian Ure go to show that Susan Christie was prepared to tell someone whom she knew well that the accused was hostile and violent towards her after the breakdown of their marriage. I accept the submission of Ms Sweeney that evidence of long-standing enmity between the parties and, in particular, hostility over the issue of access to the child Fraser, is relevant in that it goes to motive and the issue whether or not the accused in fact killed Susan Christie. Evidence of previous physical confrontations between the two go to show the enduring nature of the hostility and the heights it reached. It is therefore not to be confined to recent acts of hostility.

39 I am told that the accused claimed in statements to the police, that he last saw Susan Christie alive on 15 November 2001 when they sat down at her unit and had an amicable discussion about the arrangements for Christmas. Evidence will show that Susan Christie had been awarded access to Fraser on Christmas Day 2001. The Crown submits that statements by her indicating that her state of mind in the weeks leading up to her disappearance, viewed against a backdrop of years of hostility over the issue of Fraser, was anger, enmity and apprehension, are relevant. I accept that. They can be led not to prove the truth or reasonableness of any complaint she makes against the accused, but to reveal, inter alia, that her attitude towards him was such that it is highly unlikely any amicable discussion occurred as he said to the police. Furthermore, should the jury accept that the accused killed Susan Christie, the evidence of relationship and statements indicating her attitude to him, would also go to rebut defences such as accident or lack of intent. The nature of their relationship is relevant to the issue whether or not the accused in fact killed Susan Christie.

40 Like all evidence, this is not to be considered in isolation, but in the context of the evidence as a whole. Looked at in that way, its relevance and probative value goes beyond merely disclosing some unfortunate incident in the history of the relationship between the accused and Susan Christie.

41 The purpose of the evidence would be limited and the jury would have to be directed not to use it for inferring a propensity towards violence on the part of the accused. Indeed, an appropriate direction in this case would have to make it clear that the truth of the allegations made by Susan Christie is irrelevant - it is the fact that she made them at all which goes to show the nature of the relationship.

42 I consider this evidence to be relevant and admissible. I see no relevant prejudice nor unfairness which would require exclusion of this evidence in the exercise of discretion. So far as Ms Lonsdale's point about the accused's inability to cross-examine Susan Christie is concerned, I consider that to be met by the observations of Hayden JA in Clark, supra, which in my view have similar application here.

43 Paragraph [44] of Mr Ure's statement would be in the interest of the accused. The evidence contained in [45] may properly be led by the Crown in the manner indicated by Ms Sweeney. Paragraphs [168] to [171] on the statement of Kelli Budrikis fall into the same category as those of Mr Ure. In Ms Budrikis' case they go even more directly to Fraser being a particular focus of the animosity between the accused and Susan Christie. The Crown concedes reference to Ms Budrikis' belief in [171] cannot be led and that [172] and part of [173] should not be led. I will allow evidence to be given in accordance with these paragraphs otherwise. I take the same view of [180] - [188], with the exception of [183]. That last is merely an expression of belief and is inadmissible.

44 Evidence of the incident recounted at [25] of Sarah Henley's statement is admissible and will not be excluded for the same reasons.

45 Paragraphs [188] - [190] and [192] of the statement of Dennis Austin, again go directly to show a hostile relationship between the parties and one in which that hostility was particularly generated by disputes about the child Fraser. The incident mentioned in [193] I am told will be the subject of eye-witness evidence from Susan Christie's parents, although the description of it given by Susan Christie to Mr Austin is said to be an exaggeration. If anything, that factor, if it be so, would tend to show the extent of the antipathy and hostility felt at least by Susan Christie towards the accused and bears on the nature of their relationship in that way.

46 I turn now to the second category of evidence objected to by Ms Lonsdale. That concerns evidence that the accused was under police surveillance in December 2001. As the oral submissions developed, it came to be apparent that there were two aspects to this objection. It is submitted that the evidence was irrelevant and therefore inadmissible. The alternative submission is that if relevant and admissible, the evidence should be excluded in discretion because its probative value is outweighed by its prejudicial effect.

47 The particular evidence being referred to here would be that on 14 December 2001 the accused was seen by a surveillance operative to walk down Murray Street, Perth, look around, and then run down an alley. Ms Lonsdale said the Crown wanted to lead that evidence to show the accused was "surveillance aware" and attempting to evade it.

48 She submits there is no probative value to that evidence, or if there is, it is so slight that it is outweighed by the prejudicial effect in the minds of the jury which would flow from knowing the accused was under police surveillance. I should say at once that if there be some relevance to the evidence, I would not discern any unfair prejudice to the accused. The evidence will be that there were a number of people under police surveillance. In any event, the jury would hardly be surprised in the circumstances generally, that the accused was. It is something reasonably to be expected as a normal and natural part of police investigation of such a serious crime. It carries no inference of guilt any more than does the fact the police thought it necessary to interview him about the matter.

49 So far as relevance is concerned, Ms Sweeney says there is much more to it than suggested by the defence.

50 The Crown case will be that on 12 December 2001, two police officers attended the accused's home and spoke to him. In the course of his interview with the police on 12 December, the accused admitted to the police that his earlier descriptions to them of his daily movements and work commitments had been false. In fact he said he had no work commitments and that what he did every morning was catch a train from the Daglish railway station ostensibly to go to work, but would spend most of his time at the State Library, and then come home again ostensibly from work. That was what he told people whom he knew, including Michelle Terdich who had been living with him for a couple of years at that time. As far as she was aware, she was dropping him off to the railway station every morning so that he could get to work.

51 Following that interview on 12 December, the accused agreed to follow them to police headquarters, taking his Ford Festiva car so that it could be examined. The police officers observed that he was constantly chewing his nails and appeared agitated. That was behaviour which they had not previously observed in their dealings with him. The relevance of the police enquiries about the car is that the Crown case is that Susan Christie was violently assaulted in her unit and her body taken from that place. A car is the most obvious means of transport.

52 On 13 December 2001, the car was returned to the accused, but police advised him that the boot mat would not be returned as it was required for further testing. The accused was placed under surveillance on 14 December 2001.

53 On the morning of 14 December 2001, surveillance operatives observed him catch a train from the Daglish train station into the Perth CBD. He was dressed in a suit and tie and was carrying a laptop and a mobile phone. He arrived in the city at 9.11 am. He went to the State Library in Northbridge. At 10.20 am he was observed to enter a public phone box, used the phone, and then returned to the library. Telephone records indicate that a call was made from that public phone to the work number of a Kim Jeffery. The accused remained in the library for a while, before visiting two book stores. He left Boffins' book store with a book before meeting a male person at Cino to Go Café at 2.18 pm. After that meeting he was observed to look about, then run down an alley next to Shearers' Menswear in Murray Street. He was subsequently seen in the Hay Street mall and was later seen using his mobile phone.

54 Telephone records indicate he telephoned a Madge Teune, followed by two attempts to call the number of Helena Punch and then a successful call to that number.

55 Other evidence on the brief will show that he purchased a book on heavy weather sailing from Boffins that day.

56 The Crown case will further be that through Jeffery and Teune, the accused got onto Ms Punch, who owns a yacht charter business.

57 The significance of the telephone calls is that the accused made a booking to hire a 34 foot seafaring yacht the very next day, 15 December 2001. Punch told him the yacht was unavailable that soon, but it could be available the following Monday.

58 However, having made several indications that he would be travelling down to hire the boat, the accused became unavailable to Ms Punch because his telephone was switched to voice mail only after that and she was unable to contact him.

59 In summary, the Crown would say the effect of this evidence (fleshed out rather more than this brief description) would justify the inference that the accused became highly anxious about the retention and examination of the boot mat from his car, leading to a panic reaction to charter a yacht and leave the jurisdiction. That was a course of action which he apparently thought better of and abandoned.

60 There will also be evidence on the Crown case that notwithstanding the fact the accused is a devoted father to the child Fraser and was always anxious to accommodate the child's needs and re-organise his work commitments around them, that did not occur on 16 November 2001. On that day Fraser had a "pupil free day" at school and the accused was asked to look after him. He did not do so, pleading work commitments. The Crown would say the fact that the accused had no work commitments is significant.

61 In my view the surveillance evidence sought to be led by the Crown has a relevance, on that case, far more extensive than merely indicating consciousness of guilt by attempting to escape the surveillance itself. This objection must be overruled.

62 The final matter with which I should deal relates to evidence which is proposed to be led by the Crown and to which no objection is taken by the defence. Notwithstanding the lack of objection, the Crown quite properly has brought the matter to my attention.

63 The evidence concerned is of a number of statements made by the accused in December 2001. The statements were not recorded on video. The point arises because s 570D(2) of the Criminal Code stipulates that evidence of an admission by an accused person on trial for a serious offence shall not be admissible unless recorded on video-tape or the situation falls within one of the exceptions to that sub-section.

"(2) On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless −

(a) the evidence is a videotape on which is a recording of the admission_;_ or

(b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission_;_ or

(c) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

(3) Subsection (2) does not apply to an admission by an accused person made before there were reasonable grounds to suspect that he or she had committed the offence.

(4) For the purposes of subsection (2), 'reasonable excuse' includes the following −

(a) The 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."

65 Put shortly, the Crown's submission is that s 570D(2) which would require the interviews to be on video-recording does not apply by reason of s 570D(3). I put aside for present purposes the question whether the statements amount to "admissions" within the meaning of that word in s 570D(2). I shall assume they do.

66 The point arises in relation to four statements. There was what the Crown describes as a "pure version" statement made by the accused to police on 4 December 2001, a handwritten statement made on 4 December 2001 but typed and signed on 6 December; a further signed statement on 12 December 2001 and a signed statement on 27 December 2001. All of the statements were taken by Senior Constables Hancock and Debnam.

67 The first statement was taken less than three weeks after Susan Christie's disappearance. The accused was not charged with her wilful murder until 6 August 2002. The tie which was found to have blood stains on it consistent with the DNA profile of Susan Christie was not delivered to the PathCentre until 7 June 2002. The PathCentre report detailing the results of that scientific examination was dated 14 August 2002. The results were no doubt advised to the police verbally prior to that date, resulting in his arrest on 6 August.

68 The position therefore is, according to the Crown, that although the accused was certainly a person of interest to the police in December 2001, there were not at that stage reasonable grounds to suspect that he had committed any offence. As late as the end of January 2002, at least one other person was at interest to the police in that regard to the extent of being interviewed on video and being placed under surveillance.

69 The interviews conducted with the accused in December 2001 were conducted in the ordinary course of investigation. Indeed, the interviewing officers emphasised to the accused that it was important he give them an accurate account of his movements between 14 and 18 November 2001 because if they could be verified, it might have the effect of excluding him from their investigation.

70 In my opinion, on the basis of these submissions, on which nothing to the contrary has been advanced by counsel for the accused, I am satisfied that these statements fall within subs (3) of s 570D of the Criminal Code and accordingly the exclusionary provisions of subs (2) do not apply to them.