R v Dupas [2000] VSC 372

8. It is said that the following conversation then took place. "Detective Sergeant Mitchell is my name from the Homicide Squad. It is 1.15 p.m. on Thursday 22nd of April 1999. Your full name?" "Peter Norris Dupas." "Do you know a Nicole Patterson?" "No." "Have you ever had anything to do with her at all?" "No."

11. Detective Senior Constable Scarlett stated that, at about that time, he observed what appeared to be a scratch mark on the left side of Mr. Dupas' face. Mitchell, his companion, asked "How did you get that scratch on your face?" The accused, it is said, responded, "I got them working in the shed." Mitchell, it is said, asked, "Exactly how did that happen?" The accused, it is said, responded, "A piece of wood came out of the machine and hit me in the face." Mitchell, it is said, asked "What about that one?", indicating an apparent scratch on the accused man's left hand. The accused is said to have responded, "I got that the same way."

14. It was then appreciated that the micro-cassette recorder had not been operating. An attempt was made to activate it without success.

17. When the accused was subsequently interviewed in a tape-recorded conversation at the offices of the Homicide Squad, he was asked (inter alia) the following questions: "Earlier today I had a conversation with you outside the hotel, after I cautioned you and gave you your rights. You agreed that I gave you - that I cautioned you and gave you your rights earlier tonight. In the conversation I had in the car with you, do you agree that you told me you didn't know Nicky Patterson and had no contact with her?" Answer: "No comment." "Have you ever spoken to her?" Answer: "No comment." "Have you ever been to number 21 Harper Street in Northcote?" Answer: "No comment." "Can you tell me, Peter, what you did last Monday - Monday morning - Monday just gone - Monday the 19th of April 1999?" Answer: "No comment." "Peter, on your face I can see what appears to me to be a scratch mark. Can you explain that to me?" Answer: "No comment." "Do you agree with me that you've earlier told me that - again in the car outside - the hotel in Thomastown, that you received that scratch - that mark, should I say - from a piece of timber when you were doing some in woodwork in your garage?" Answer: "No comment."

20. No argument has been advanced on his behalf that the part of the conversation which the police members assert took place in the vehicle and which related to his claimed absence of any knowledge of or contact with the deceased should be excluded. However, objection has been taken to the admission of the portion of the conversation relating to the observation of scratches on the accused man's face and his purported explanation of their origin.

23. Essentially what has been submitted to the Court is that the provisions of s.464 have not been complied with and that the circumstances are not such that the impugned passage should be admitted in the exercise of judicial discretion.

26. The relevant provisions are to be found in s.464H which reads:

"(1) Subject to sub-section (2), evidence of a confession or admission made to an investigating official by a person who - (a) was suspected; or (b) ought reasonably to have been suspected - of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless - (c) if the confession or admission was made before the commencement of questioning, the confession or admission was tape-recorded, or the substance of the confession or admission was confirmed by the person and the confirmation was tape-recorded; or (d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded; or (e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was tape-recorded - and the tape-recording is available to be tendered in evidence. (2) A court may admit evidence of a confession or admission otherwise inadmissible by reason of sub-section (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances - (a) are exceptional; and (b) justify the reception of the evidence. (3) If the questioning or confession or admission, or the confirmation of a confession or admission, of a person is recorded as required under this section or the giving of information is recorded as required under section 464G, the investigating official must give to the person or his or her legal practitioner without charge - (a) the tape-recording or a copy of it within 7 days; and (b) if a transcript of the tape-recording is prepared, a copy of the transcript. (4) Nothing in this section prevents the use of a tape-recording in a proceeding for a summary offence."

30. Those provisions are designed to ensure that appropriate protections are in place with respect to the interviewing of suspects. Ordinarily it is required that any conversation with a person who is suspected of having committed an indictable offence be interviewed with the conversation recorded by means of a tape recorder. Where there has not been compliance with this general scheme, the evidence is to be treated as inadmissible unless the court is satisfied on the balance of probabilities that the circumstances are exceptional and that they justify the reception of the evidence.

33. Although the submissions of counsel have been brief on this aspect, I do not think that I am disadvantaged in consequence.

36. The undisputed position is that the police members concerned endeavoured to comply with the statutory requirements of s.464. They had in their possession a tape recorder and attempted to record the conversation with which they proposed to have with the accused man in accordance with the provisions. Their failure to do so simply resulted from the fact that the machine did not operate.

39. No argument has been advanced, nor does any appear to be reasonably open in the circumstances, that there was any kind of trick involved or pretence engaged in by them, or that the police members had any expectation or suspicion that the machine might not operate in a normal manner. In other words, it is both undisputed and obvious that the failure to comply with the provisions was purely accidental and unintended.

42. Subsequently, at the time of the tape recorded interview which took place at the police station, an attempt was made to confirm, at least in part, the fact and substance of the earlier conversation.

45. This is not a case which raises any suspicion whatever concerning the actions of the members concerned. The evidence obviously possesses relevance in the context of the present trial. I can see no justification based upon the notion of the balance of probative value and prejudice which would justify the raising of any concerns at that level.

48. I consider that the circumstances can be properly regarded as exceptional within the meaning of s.464H(2) and I am of the view that on the balance of probabilities the circumstances justify the reception of the evidence concerned.