R v Jackson [2005] ACTSC 127

3. On 11 November 2004, in response to this complaint, the officer in charge of the investigation, Constable Roberts and Senior Constable Downton, went to Magnet Mart in Gungahlin. They arrived at about 11.30 am and had a conversation with the store manager, Mr Bruce. It appears that that conversation occupied some 10-15 minutes. They then asked Mr Bruce if he would allow them to speak with the accused, who was one of Mr Bruce's subordinates. The accused was duly notified and met with the police officers in Mr Bruce's office. A conversation then ensued which apparently commenced some time around about 11.45 am and occupied some 10 or 15 minutes, presumably finishing about noon on that day.

4. During the course of that conversation, Constable Roberts advised the accused that he was investigating an alleged assault and intended to ask him some questions in relation to it. He proceeded to formally caution the accused and asked him a number of questions in relation to the allegation that had been made by the complainant. The accused denied all knowledge of any assault or altercation with a member of the public. He was then shown a copy of a receipt that Mr Harpley claimed had been signed by the man who assaulted him. The accused confirmed that his signature was on the receipt. He was subsequently asked to accompany police to Gungahlin Police Station to participate in a taped record of interview and he agreed to do so.

5. The interview at the Gungahlin Police Station commenced at about 12.27 pm, that being less than half an hour after the accused concluded his first conversation with police. It was interrupted at about 12.31 pm, to enable the accused to seek legal advice and speak to his mother, and recommenced at about 12.50 pm. During the course of the interview, Constable Roberts put to the accused the allegation that he had assaulted the complainant. The accused denied knowing anything about the alleged assault and, when asked about the events of the day in question, indicated that he could recall nothing in particular happening during his shift. He was again shown the receipt and asked to agree that the signature was his. He confirmed that it was. At the end of the interview, the accused was arrested, charged and subsequently granted bail on conditions apparently requiring him not to return to his place of employment. The reason for this condition has not been explained adequately.

6. Mr Sharman, who appears on behalf of the accused, has submitted that evidence of his admissions that he had signed the receipt is inadmissible by reason of the provisions of s 23V of the Crimes Act 1914 (Cwth). The relevant portion of that section is as follows:

"(1) If a person who is being questioned as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:

(a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission - the questioning of the person and anything said by the person during the questioning was tape recorded . . . "

7. Subsection (1) is qualified by subsection (5) which provides, and again I quote:

"A court may admit evidence to which this section applies even if the requirements of this section have not been complied with or if there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice."

8. It is not disputed that s 23V applies to the offence in question. Nor was it disputed that the police failed to tape record the first interview at Magnet Mart, despite the availability of a tape recorder.

9. Mr Sharman has drawn my attention to the decision of the High Court of Australia in Heatherington v R [1994] HCA 19; (1994) 179 CLR 370. That case concerned a comparable provision contained in s 464H of the Crimes Act 1958 (VIC). The case was heard by a Full Court of seven High Court judges, and in a joint judgment Mason CJ, Deane and McHugh JJ referred at [7] to an earlier decision of the court in Pollard (1992) 176 CLR 183 in which Toohey J, in a judgment with which Mason CJ had generally agreed, stated at page 219:

"It is obvious that in some circumstances questioning may properly take place on a number of occasions and, it may be, at a number of places. But if the Crown seeks to lead evidence of a confession or admission made on any of those occasions, its admissibility will be determined by the operation of the section. And even if the Crown chooses, as here, not to rely upon something said on an earlier occasion, the earlier occasion may be treated by the Court as part of the same questioning if circumstances, in particular proximity of time and place, so dictate."

10. Having referred to these observations with evident approval, their Honours referred at [12] to what they regarded as a preferred construction of the section. Their Honours said, and I quote:

" . . . the admissibility of a confession turns on a question of substance: whether the earlier questioning was part of the same questioning which produced the confession. If it was not, the fact that the earlier questioning was not recorded will not of itself preclude the reception of evidence of the questioning in the course of which the confession was made.".

11. Their Honours returned to this issue at [13] stating:

"The issue here then is whether the initial period of questioning and the second period should be characterized as the same questioning. The resolution of such an issue involves questions of degree and may require a weighing of a variety of factors including the proximity of time and venue, the relationship between the occasions on which the questioning took place and the relationship between the interrogations which took place on those occasions. Thus, it may transpire that, on the second occasion, the questioning is likely influenced by what was said on the earlier occasion, in which event one might the more readily conclude that a confession made on the second occasion was made in the same or the one period of questioning which began on the first occasion."

12. In the same case Brennan, Dawson and Gaudron JJ gave a second joint judgment in which their Honours appear to have come to much the same view. Their Honours said at [10]:

"When there is a series of questions, including questions and answers that have been tape-recorded, and the confession is made during the tape-recorded questioning, the whole series of questions must be considered. By reference to the whole series, the court ascertains whether, as a matter of objective fact in all the circumstances - including time, place, content and the participating persons - the tape-recorded questioning and the questioning in the remainder of the series are part of the same questioning or are different questionings."

13. In the present case, it should be noted that the recorded interview commenced no more than 30 minutes after the unrecorded interview had concluded. It involved the same participants, and the accused was taken directly from the place of the first interview to the police station for the express purpose of conducting the second interview. Unlike the case of Heatherington, there was no intermediate period during which the police left to conduct further investigations.

14. Furthermore, Constable Roberts gave evidence that the decisive piece of evidence which was the catalyst for the decision to arrest and charge the accused was the admission in the second interview that he had signed the receipt given to the complainant. As previously mentioned, a similar admission had also been made during the course of the earlier interview at Magnet Mart and Constable Roberts seemed unable to explain why admission to that effect became the catalyst for laying the charges only when given on the second occasion. The answer, in my opinion, seems obvious. Constable Roberts presumably realised that the evidence of the first admission would be inadmissible because the conversation had not been properly tape recorded. Be that as it may, having regard to the criteria specified in Heatherington, it is clear that the conversation which took place at the Gungahlin police station was, in substance, part of the same questioning that had commenced at Magnet Mart.

15. Accordingly, I find as a matter of fact, that part of the questioning had not been tape recorded and, as a consequence, the evidence of admissions contained during the course of the questioning is inadmissible.

16. That leaves only the question of whether I should exercise the discretion provided by s 23V(5). However, it is clear, from the fact that the accused was immediately cautioned, that he was being questioned as a suspect and equally clear that the conversation could have been tape recorded. Indeed, the police had taken a portable tape recorder with them but chose to leave it in the car. No reason has been advanced for not proceeding to tape record the conversation. Accordingly there is no evidence of any special circumstances in this case by reason of which I could conclude that the admission of the evidence would not be contrary to the interests of justice.

17. For these reasons I find that the evidence of the interview is inadmissible.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the Crown: ACT Director of Public Prosecutions