R v Crowther-Wilkinson R v Cowie

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

70096/01 REGINA v Simon Christopher CROWTHER-WILKINSON 70033/02 REGINA v James COWIE

JUDGMENT - Admissibility of the accused Cowie's statement to police. 1 HIS HONOUR: Simon Crowther-Wilkinson (to whom I shall refer simply as "Wilkinson") and James Cowie are jointly charged with the murder of Graeme Adams in the evening of 6 June 2000 or the small hours of the following morning. Ms Rigg, counsel for the accused Cowie, objected to the tender of a statement her client made to the police on 4 August 2000. The Crown sought to rely upon an admission said to have been made in that statement. The objection relied upon s 108 of the Criminal Procedure Act because the statement had not been electronically recorded. 2 On 5 June 2002 I rejected the statement. These are my reasons for that ruling. 3 The statement was taken by former Detective Sergeant Geoffrey Brown, who has since left the police force, and Detective Senior Constable, now Inspector, Wade Berryman. Mr Brown asked the questions of Mr Cowie which elicited the information contained in the statement, Inspector Berryman's role being primarily that of typist. 4 It is sufficient for present purposes to set out the first two subsections of s 108 of the Criminal Procedure Act: "108 (1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence; and (b) that was made in the course of official questioning; and (c) that relates to an indictable offence … (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made; or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms; or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made." 5 It is common ground that Mr Brown and Inspector Berryman were "investigating officials" engaged in "official questioning", as those expressions are defined in subsection (4). It is also common ground that there is no "tape recording" of the statement, as that expression is defined in the same subsection. 6 Much of the statement deals with background which, the Crown prosecutor told me, is uncontroversial and able to be proved by other evidence. However, the later part of the statement deals with the events of 6 June 2000 and contains material which is, of course, important. It was that night that the deceased disappeared and it was then, on the Crown case, that he was killed. Mr Cowie was an employee of a security company, of which Mr Wilkinson and the deceased were the proprietors. Mr Cowie's statement records his activities that afternoon and the arrival of the deceased at the business premises in the early evening for a meeting with Mr Wilkinson. He goes on to say that Mr Wilkinson and the deceased decided to go out and have a meal, that all three left the premises, that he was driven by Mr Wilkinson to a suburban railway station and dropped off, and that the deceased followed them in his own car. When he alighted from Mr Wilkinson's car, the deceased blew his horn or flashed his lights and he waved back. The effect of his statement is that that is the last he saw of the deceased and that he had nothing to do with his death. 7 To this point Mr Cowie had said nothing about that evening which could amount to an admission, as that expression is defined in the dictionary of the Evidence Act, in the sense that it could be said to be "adverse" to his "interest in the outcome of the proceedings." What he said is exculpatory and the Crown prosecutor acknowledged that he has no evidence admissible against Mr Cowie tending to contradict his account, so as to render it harmful to his defence: cf R v Horton (1998) 45 NSWLR 426, per Wood CJ at CL at 437-8. 8 It is what follows that the Crown relies upon as an admission. The statement goes on to recount that Mr Cowie then proceeded to his home where, as he put it, "I surfed the Internet and caught up on my emails." The Crown can produce expert evidence that his computer was not used for that purpose that night, and it was to be the Crown case that that part of his statement is a lie designed to mislead the police about his whereabouts at a crucial time. 9 In evidence on the voir dire, both Mr Brown and Inspector Berryman said that they did not consider Mr Cowie a suspect when they commenced taking his statement. Some weeks previously, on 13 July 2000, those two officers had taken a lengthy statement from Mr Wilkinson. He also had given an account of his leaving the business premises with Mr Cowie and the deceased on the evening of 6 June but, on the face of it, there was an inconsistency between his account and that of Mr Cowie. Mr Wilkinson had said nothing about the deceased following him to the railway station where he dropped Mr Cowie off. 10 Inspector Berryman's evidence on the voir dire was that he noticed that inconsistency when Mr Cowie was describing the departure of the three men from the business premises and that this "triggered" a suspicion of Mr Cowie, although it was not "fully formed" until the statement was complete. After Mr Cowie had signed the statement and departed, he discussed the matter with Mr Brown and they examined Mr Wilkinson's statement. For his part, Mr Brown gave evidence that it was not until then that he entertained any suspicion of Mr Cowie. 11 A fair interpretation of Inspector Berryman's evidence is that the inconsistency between the statements of Mr Cowie and Mr Wilkinson, of which he was conscious before Mr Cowie's statement was completed, engendered a suspicion which was confirmed afterwards when he reread Mr Wilkinson's statement. It was immediately after Mr Cowie's account of his being dropped at the railway station that he went on to describe his going home and using his computer, the assertion which the Crown would have relied upon as an admission. It may be that Inspector Berryman's suspicion had been formed at that very moment, but that is not something which I need to decide. What is clear is that the suspicion was formed before the statement was completed and Mr Cowie had left. 12 In R v Rowe [2001] NSW CCA 1, the Court of Criminal Appeal was called upon to consider s 424A of the Crimes Act, the predecessor of s 108 of the Criminal Procedure Act. Differences in the wording of the two provisions is not material for present purposes. By subsection 424A(4), "admission" was defined as one "that was made by a defendant who, at the time when the admission was made, was, or ought reasonably to have been, suspected by an investigating official of having committed an offence …" In Rowe (at para 40) Smart J, dealing with the question when a suspicion was, or ought reasonably to have been, entertained for the purpose of the section said: "The critical time is when the admission is made. The police officer has to make an on the spot decision whether to record the conversation." 13 In the present case, to confine the "critical time" to the exact moment when Mr Cowie made the admission about use of his computer would be absurd and would defeat the purpose of the legislation. In my view, it is sufficient that Inspector Berryman became suspicious before the statement was concluded. He was an "investigating official" within the meaning of the section, and it is not to the point that the interview was being conducted by Mr Brown. It was open to him to have suggested that the taking of the statement be suspended and to have revealed his suspicion to Mr Brown before it proceeded further. Arrangements could then have been made for the interview to be resumed with electronic recording and Mr Cowie's account of his movements on the evening of 6 June could have been revisited. 14 Insofar as s 108(1)(a) refers to an admission made by an accused person who "was or could reasonably have been suspected" of having committed an offence, that paragraph creates both a subjective and an objective test. In my view, both tests would be satisfied by a level of suspicion falling short of that necessary to justify an arrest. In Rowe (also at para 40) Smart J said: "Section 424A applies to an admission that was made by a defendant who at the time when the admission was made was, or ought reasonably to have been, suspected by an investigating official of having committed an offence. This covers where the accused was actually suspected by the investigating official (police officer) and where the investigator ought reasonably to have suspected that the defendant had committed an offence … This latter provision overcomes the difficulty of a police officer being naïve or stating that he did not suspect an offence when he should reasonably have done so. This provides important protection for the accused." 15 The Crown prosecutor argued that neither Inspector Berryman nor Mr Brown entertained the relevant suspicion until they had reviewed Mr Wilkinson's statement after Mr Cowie had departed. In my view, however, the effect of Inspector Berryman's evidence is that he had formed a suspicion sufficient to invoke s 108 while the taking of the statement was still in progress. It is not suggested that there was any "reasonable excuse", within the meaning of s 108(2)(b), why an electronic recording could not have been made on that occasion. 16 It is entirely understandable that Mr Brown and Inspector Berryman may not have been conscious of the requirements of s 108 at this stage of a complex investigation, particularly as I have no doubt that they did not then believe that they had evidence sufficient to warrant Mr Cowie's arrest. However, the importance of a provision such as s 108 was expressed in Horton, a case itself dealing with s 424A of the Crimes Act: see the judgment of Wood CJ at CL at 438-9. It was re-emphasised in R v Reid [1999] NSW CCA 258, another case dealing with the Crimes Act provision, in the judgment of Smart AJ at paras 67-9. In the same case Spigelman CJ, agreeing with Smart AJ, said this (at para 6): "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 s 242A must be satisfied." 17 The requirements of s 108 of the Criminal Procedure Act are just as rigorous and, like its predecessor, the section affords a trial judge no residual discretion to allow evidence which does not meet them. 18 I should record that Ms Rigg also submitted that Mr Brown and Inspector Berryman suspected Mr Cowie of involvement of some kind in the killing, or could reasonably have done so, before he attended the police station on 4 August 2000 to give his statement. Certainly, there is a body of evidence which could lead to either of those conclusions but it is not necessary that I decide that issue.

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