Edited edition of reasons for judgment delivered orally

Criminal law - Evidence - Confessions and admissions - Records of interview - Other matters - Requirement for video taping - When confessions and admissions are admissible if the requirement is not satisfied - What amounts to admission.

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

Judgment Number: [2001] TASSC 49

1 The accused Kelly was interviewed by police on 19 September 1995. In the course of that interview he made some admissions. Mr Wendler QC, counsel for Mr Kelly, sought to exclude the evidence of this interview on the grounds that:

* it was made during a period of time when the accused was "unlawfully in de facto police custody";

* its taking was not made in accordance with the Criminal Law (Detention and Interrogation) Act 1995 ("the Act"), s8; alternatively

* it should be excluded in the exercise of the trial judge's discretion on the basis that its admission would be unfair to the accused.

2 For reasons given orally during the course of the voir dire, I have rejected the submissions made on behalf of Mr Kelly except those based upon the Act.

3 Mr Kelly was intercepted by police officers as he was driving his car along the Tasman Highway near Mornington. He had been diving that day and had on the back of his small truck or utility, a load of live abalone. He was told by police officers that they wanted him to come with them to the office of the Police Marine Division in Hunter Street as they wanted to interview him. He drove his car to the offices as requested. On arrival he was taken to an interview room and interviewed by one police officer in the presence of another. The interviewing officer wrote down in long hand the questions that he asked Mr Kelly and the answers that Mr Kelly gave to those questions (VD3). These notes were read back to Mr Kelly and he agreed that, in essence, they were a correct account of their conversation. He said the same thing to a senior officer when taken before him for the purpose of completing the Register of Person Interviewed. In his evidence on the voir dire the accused agreed that the notes were correct except for one matter, viz, the statement that he was cautioned and the statement that he understood the meaning of the caution. I have already found as a fact, that he was cautioned as stated in VD3. At the conclusion of the interview and before being taken before a senior officer, the accused was asked if he would agree to an interview on video but he declined to do so as was, of course, his right.

4 The Act was enacted on 14 November 1995 but did not come into force until 2 December 1996. Accordingly, the provisions of the Act, s8 had not been enacted by the Parliament at the time of the impugned interview. However, the Act is a procedural Act and applies to the trial of the accused even though it did not exist at the time of the interview. See Rodway v R [1990] HCA 19; (1990) 169 CLR 515; R v Haas 6/1997.

5 The Act, s8(2) and (3) provides:

"(2) On the trial of an accused person for a serious offence, evidence of any confession or admission by the accused person is not admissible unless -

(a) there is available to the court a videotape of an interview with the accused person in the course of which the confession or admission was made; or

(b) if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why a videotape referred to in paragraph (a) could not be made, there is available to the court a videotape of an interview with the accused person about the making and terms of the confession or admission or the substance of the confession or admission in the course of which the accused person states that he or she made a confession or an admission in those terms or confirms the substance of the admission or confession; or

(c) the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why the videotape referred to in paragraphs (a) and (b) could not be made; or

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

(3) 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.

6 The only evidence with respect to the issue of a reasonable explanation as to why the video tape could not be made was given by Sergeant Gunston in his evidence-in-chief. He said that there were no facilities to make a video tape at the offices of the Marine Police, and that such facilities were only available at Police headquarters, which I infer was then in Liverpool Street. He said that it would "take time" to get a video interview arranged and there was a priority to get the accused's live abalone to the processing factory before they deteriorated to the stage when they would no longer be saleable on the live fish market. Accepting that evidence as I do, I do not see why Sergeant Gunston could not have taken the accused straight to Police headquarters and interviewed him there instead of taking him to the offices of the Marine Police. I accept at the offices of the Marine Police there were documents that Sergeant Gunston wanted to put to the accused, but they could easily have been collected on the way to Police headquarters. None of this was explored in cross-examination, no doubt because failure to comply with the Act was not a submission that Mr Wendler was going to make until after he heard Mr Coates, senior counsel for the Crown, deal with it in his closing address. The onus is on the Crown to show the existence of a reasonable explanation within the meaning of the Act, s8(2)(c), and the evidence of Sergeant Gunston does not do so. Mr Coates submitted in the alternative, that the Court should be satisfied that "there [were] exceptional circumstances which, in the interests of justice, justify the admission of the evidence".

7 Prima facie, no such circumstances are apparent but Mr Coates referred to T (a child) v R (1998) 20 WAR 130, a decision of the Full Court of Western Australia concerning the admission of confessional evidence pursuant to the Criminal Code (WA), s570D(c), which is in the same terms as the Act, s8(2)(d). As is the present case, at the time of the interview in question in T's case, s570D was not in force. Ipp J, with whose reasons for judgment on this point the other members of the Court agreed, referred to the origins of the statutory requirement for video taping as disclosed by Kelly v R (1994) 12 WAR 405 and Sell v R (1995) 15 WAR 240. See also McKinney v R [1991] HCA 6; (1991) 171 CLR 468; R v Stewart (1993) 2 Tas R 274. He then said at 139-140:

"Thus, at the time in question, a rule of practice was in force to the effect that it was highly desirable, when video facilities were available, for police to make use of them when interrogating witnesses. That is a far cry from s570D which, by law, renders admissions inadmissible save in the circumstances set out therein. The point of the rule of practice was to ensure that steps were taken to prevent the admission of a confession that was not true, or that was made in unfair circumstances. Section 570D is aimed at the same purpose. In my view, if an accused person makes an inculpatory statement in circumstances held to be fair, and does not assert in any way (whether by way of cross-examination of the Crown witnesses, or by evidence adduced by him or her) that the statement was false, and there is nothing to suggest that the statement might be false, it would not be in the interests of justice for the statement to be precluded from admission into evidence. In my opinion, such a situation would constitute "exceptional circumstances" within s570D(2)(c)."

8 Ipp J then examined the evidence with respect to the making of the confession and concluded that there was nothing in it to suggest anything other than that the written record of it was accurate. He observed that the accused did not claim, or suggest that any part of it was inaccurate, and concluded that the fact that the accused did not claim any inaccuracy, and the fact that no evidence suggested that the police evidence was inaccurate or false, together was sufficient to bring the confession within the exception provided by s570D(2)(c).

9 In the present case, the accused says that the record was inaccurate in that he was not warned nor did he state that he understood the meaning of the warning as stated in the notes and further, was only prepared to admit that "in essence" the written notes constituted an accurate record of the interview. In his evidence, the accused was not able to suggest in what respect, other than the absence of the warning, the notes were not a completely accurate record of what was said, but none-the-less it seems to me that this is a different case from that of T (a child) v R (supra) in that it cannot be said that there is no dispute about the accuracy of the document VD3. In R v Browne [2000] TASSC 105 the learned Chief Justice said:

"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'."

10 Finally, it is appropriate to recall the observation of Zeeman J in R v Arnol 15/1997 at 4:

"In my view, courts should be slow to admit evidence in reliance of s8(2)(d). The proceeding provision of s8(2) ought to be seen as laying down the normal circumstances in which records of interview will be admissible. Despite that, there may be cases where the case is out of the ordinary and where the interests of justice justify the admission of the evidence. It is only in such circumstances that s8(2)(b) applies. It may be that one circumstance is where the Crown seeks to have the evidence admitted and the accused expressly consents to it being admitted."

11 In my view, no exceptional circumstance has been shown to exist which would justify the invocation of the Act, s8(2)(d).

12 Of course, the provisions of the Act, s8 only apply to admissions, viz, "... either a direct admission of guilt or of some fact or facts which may tend to prove the prisoner's guilt at the trial". Per O'Connor J in Attorney General (NSW) v Martin [1909] HCA 74; (1909) 9 CLR 713 at 732. See also R v Arnol (supra) at 5. Statements made by the accused during the interview that his signature was on certain documents fall into the category of admissions if it is part of the Crown case that the contents of the documents are false and that the falsification is an act evidencing the existence of the conspiracy charged against Mr Kelly. Subject to submissions to the contrary it seems to me that exculpatory denials by the accused that he did not know what certain calculations were and denials that he had been informed that he was paid for "undeclared" fish are not caught by the provisions of the Act, s8. The same can be said for the accused's denial that he had ever heard of the expression "offs" with respect to abalone. I will hear counsel with respect to what part or parts of the interview with police are admissible against the accused, not being admissions within the meaning of the Act, s8.