R v Jason Robert Naa

Supreme Court of NSW|2009-08-26|Before: Howie J, James J, Johnson J, Sully J

Reported Decision : 197 A Crim R 192 76 NSWLR 271

CITATION : R v Jason Robert Naa [2009] NSWSC 851 This decision has been amended. Please see the end of the judgment for a list of the amendments.

DECISION : The evidence of statements made to police at the scene of the stabbing admitted into evidence.

Criminal Procedure Act 1986 - s 281 Evidence Act 1995 - ss 84, 85, 90, 138, 139 LEGISLATION CITED : Crimes Act 1900 - s 424A Criminal Law (Detention and Interrogation) Act 1995 (Tas) - s 8 Criminal Code (WA) - s 570D

R v GK [2001] NSWCCA 413; 53 NSWLR 317 R v Petroulias (No. 1) [2006] NSWSC 788; 217 FLR 242 R v Horton (1998) 45 NSWLR 426 R v Reid [1999] NSWCCA 258 R v Sharp [2003] NSWSC 1117; 143 A Crim R 344 CASES CITED : Kelly v The Queen [2004] HCA 12; 218 CLR 216 Nicholls v The Queen and Coates v The Queen [2005] HCA 1; 219 CLR 196 R v Taouk [2005] NSWCCA 155 Carr v Western Australia [2007] HCA 47; 232 CLR 138 R v Em [2003] NSWCCA 374 Em v The Queen [2007] HCA 46; 232 CLR 67

COUNSEL : W Creasey - Crown S Siva - Accused

SOLICITORS : S Kavanagh - Crown Jefferys & Associates - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT Introduction 1 HIS HONOUR: The accused has been charged with the murder of Kara Kenny, his former partner, on 19 October 2007. It is not in contest that the accused stabbed her causing her death. I understand that the issues to be determined by the jury are whether, at the time of the stabbing, he had the intent necessary for murder and, if he had, whether the defence of substantial impairment can be sustained. 2 The accused objects to evidence of admissions allegedly made by him during, what could be called, a standoff between him and the police that occurred shortly after he had stabbed the deceased. It is submitted on behalf of the accused that the admissions are rendered inadmissible under s 281 of the Criminal Procedure Act 1986. It is further submitted that the admissions were obtained in breach of Australian law because of the absence of any caution given to the accused before the admissions were made. Reliance is also placed upon the discretion contained in s 90 of the Evidence Act. Although initially it was indicated that the accused also intended to rely upon s 85 that intention was withdrawn during the hearing. 3 A voir dire was held before me during which a number of police officers were called and exhibits tendered. This matter was for trial before James J earlier this year. The same issue was raised before him and he also heard evidence from the police officers on a voir dire. The transcript of those proceedings has been tendered before me. James J did not conclude the hearing for reasons that are irrelevant and, therefore, never did conclude whether the evidence was admissible. 4 However his Honour did make a preliminary finding during the course of the voir dire that "at least parts of the evidence sought to be adduced by the Crown fall within s 281 of the Criminal Procedure Act". The parties agree that I am not bound by that decision see R v GK [2001] NSWCCA 413; 53 NSWLR 317. 5 The question of the significance of a pre-trial ruling by another judge was extensively considered by Johnson J in R v Petroulias (No 1) [2006] NSWSC 788; 217 FLR 242. In that case his Honour was called upon to consider a ruling made by Sully J in an earlier trial where the jury had been unable to reach a verdict. Johnson J stated:

[52] …………………I propose to approach the issues raised by the present applications upon the basis that I will consider the submissions and evidence to which reference has been made and I will make my own independent assessment of that material for the purpose of ruling on the applications. I will have regard to the decisions of Sully J to which I have been taken to assist in this decision-making process. I am not bound by any of the decisions of Sully J. However, his Honour's judgments will assist me in reaching the decisions on the various applications.

That was a ruling upon an application to quash a count on the indictment. Sully J had refused the application. The ground for the quashing of the count was said to be that it was foredoomed to fail. Johnson J also rejected the application. 6 It seems to me that I am bound to consider the evidence and the arguments advanced before me afresh. I should take into account the decision of James J and, unless the evidence before me is different and I do not understand that it is, I should receive assistance from his Honour's ruling and depart from it only if I believe that I should do so in the exercise of my own duties as the trial judge. Comity would indicate that I should give his Honour's decision considerable weight. The evidence The siege 7 There is little dispute as to the facts during which the admissions are alleged to have occurred. Although the police officers were called, it was never suggested that any of them was being untruthful or unreliable in the evidence given before me. 8 The background to the incident is that the accused and the deceased were separated at the time but living in the same unit. This was next door to the unit where her grandparents resided. During the evening of 19 October an argument occurred between the two of them over the children. The accused left the premises and went to a hotel where he purchased some alcohol. He returned to the unit and consumed the alcohol in front of the premises. 9 At about 10.30pm the two had a further argument, as a result of which the deceased left the premises with her younger child and went next door to her grandparents unit. She entered the premises and said "Jason has been drinking. I need to call the cops". She then dialled triple 0 and requested police attendance because the accused had been smashing the unit in which they were living. This was at 11.56pm. 10 A short time later the accused forced entry into the premises allegedly armed with a knife and a piece of wood. The phone line was still open and the proceedings can be heard on a record of a second triple 0 call that was made by the deceased at 12.02am. The deceased complained that the accused was going to burn her house. Knocking can be heard during the call and conversations between the deceased, her grandparents and the accused. Eventually the deceased's grandmother starts screaming and yelling that the accused had stabbed the deceased. 11 The accused then left the premises armed with two knives and walked up and down outside the front of the building on a raised lawn area. 12 The first police officers on the scene were Constables McCarthy and Knight. They were in a patrol car at about 12.07am when they received two messages. The first was that a male had smashed in a door at nominated premises in Wyong. While on the way to the location, they received another message that a female had been stabbed. When they arrived at the scene, they saw the accused waving two knives, one in each hand. This was at about 12.08am. 13 Both police officers exited their vehicle and drew their pistols pointing them toward the accused. Both called on him to throw down the knives. The accused said, "Shoot me. Come on shoot me. I've already stabbed her. Its not gonna matter. Just shoot me". Similar exchanges continued for a short time, the police calling upon the accused to drop the knives, and he stating that he had killed the deceased and he wanted to be shot. 14 A number of civilians were around the scene by this time including the deceased's grandparents. On a number of occasions McCarthy told the accused that they were here to help him and asked him to tell her what happened. At times the accused moved toward the police in a threatening manner. At one stage McCarthy put her finger on the trigger of her pistol and started to squeeze believing that she would have to shoot the accused for the protection of herself and her partner. However the accused turned away. 15 At another stage the accused moved away from the police giving McCarthy time to radio for assistance. This was at 12.14am. The two officers then entered their vehicle and followed the accused as he walked down the street for a distance of about 50 meters. An ambulance arrived but the accused waved the knives towards it aggressively. 16 He then returned to the front of the premises where he had stabbed the deceased. The police parked the vehicle, got out and again drew their weapons and pointed them at the accused. Again McCarthy called upon him to put down the weapons. The accused said, "What's the point? I stabbed her there. Then over there. Just shoot me. It's already done". 17 A conversation ensued between the two during which they exchanged first names. McCarthy said, "Put down the knives Jason, I want to help you." The accused said, "No you don't. You're lying. You've got on the blue uniform and you lie. You're here because I stabbed her, you'r here because I stabbed her." McCarthy said, "Yes, you are right that is why we were called here. But now I want to talk with you and find out what is happening with you." The accused said, "She deserved it, I am sick of this shit. Six years". 18 By this stage the deceased had been removed from her premises and taken to a neighbour's house across the street. McCarthy said, "Who did you stab?" The accused said, "Kara, she's over there." He then pointed across the road and said, "And if she is not dead then I will go over there and kill her. And if you help her then I will do this again." 19 While this was occurring an ambulance attempted to approach the premises to treat the deceased. This was at 12.20am. The accused became extremely aggressive and stated, "The ambulance doesn't go in there. If they go in there I kill her." He moved towards the ambulance saying, "I'll fucking kill her. I'll fucking slice the lot of you." Fearing what the accused might do, McCarthy directed the ambulance to withdraw. 20 The following conversation then occurred. McCarthy said, "Look the ambulance is going. Okay I have told them to go back." The accused said, "Don't fucking lie to me Sharon." McCarthy said, "I am not lying Jason. You can see them going." The accused said, "No one better help her. I will kill anyone that helps her. I want her dead." McCarthy said, "Jason we are focusing on you. I want to help you sort this out". The conversation continued between the two including comments about the work the accused had done in the garden of the premises. 21 McCarthy then said, "What has happened with Kara tonight Jason?" The accused replied, "What sort of mother lets their kids stay up to 11.30 at night?" McCarthy said, "I see what you mean. What else has she done?" The accused stated, "Well she won't work. She is on the pension. She wants to live in Government Housing with all her fucking relatives. They all hate me. Fucking grandparents are happy to live in this shit hole. Who wants that for their kids?" McCarthy said, "I can see you love your kids very much. Is she a druggie?" The accused replied, "Yeah she's been on methadone for six years. I had no choice." McCarthy said, "I can see you had reasons for what you have done but you have to put down the knives." 22 By this time other police had arrived and moved into positions around the premises and in the street. Senior Constable Stevens, also with his pistol drawn, moved to the side of McCarthy and shone a light on the accused. This was at 12.20am. McCarthy holstered her weapon and continued to speak with the accused in an attempt to have him drop the knives. 23 At that stage a loud hammering noise was heard and the accused became extremely agitated. The sound came from attempts to dismantle the back fence to the neighbour's property in order to enter the premises and assist the deceased. The accused again moved threateningly towards police and demanded that the ambulance withdraw. McCarthy asked him, "Why, why do you want her to die?" The accused said, "Because of all this shit, six years of this shit. What sort of mother lets her kids go to bed at 11.30 at night? Go on fucking shoot me. Then it will be over." 24 McCarthy then engaged the accused in talking about his children. At one stage he said, "Just shoot me, just fucking shoot me. I don't want you to shoot me but I am gonna rush at one of them and that one down there in the bushes or the two up there can shoot me." 25 During the lengthy conversations between McCarthy and the accused, a number of police arrived at the scene they being of various degrees of seniority and experience. They were assigned tasks by whoever was the most senior but not by either McCarthy or her partner. 26 Over a period of almost two hours McCarthy and the accused talked much in the manner I have indicated above. At various times the accused still talked of being killed by police but the conversation covered various areas including injuries suffered by the accused at work and the welfare of the children. Throughout this period the accused was armed with the two knives and officers had weapons trained upon him. 27 Eventually these talks broke down when the accused said, "I don't want to talk to you any more Shannen. You lied. I want to talk to your Sergeant." Senior Sgt Lawson then commenced to speak with the accused and the conversation continued in much the same vein as it had between the accused and McCarthy. The accused still at times called upon the police to shoot him. Eventually professional negotiators took over and ultimately the accused placed the weapons into the ground and was arrested. This was at 2.57am. 28 During the course of the conversation between McCarthy and the accused, Constable Dyer was told to take notes of the conversation in his police notebook. He commenced taking notes at 12.20am. Initially he attempted to take down what was said by both McCarthy and the accused. However he found he was unable to keep up with the conversation, so he only recorded, as best as he could, what was said by the accused. 29 At 12.12am Sgt Lawson was in a police vehicle when he received a radio call about the incident. He immediately had the siren activated. This caused the In Car Video (ICV) in the vehicle to operate. This included both a video and audio recording of what was happening in the vicinity of the front of the vehicle. Lawson arrived at the scene at 12.19am. He left the vehicle having attached one of the microphones of the ICV that operated by FM frequency to his lapel. He proceeded to stand near McCarthy. Eventually he spoke to the accused when he indicated he would not speak to McCarthy further. 30 The ICV continued to record the scene and whatever sounds could be picked up by the microphone attached to Lawson and conveyed to the recording device in the vehicle. I shall return to the recording made in this way shortly.

The ERISP 31 After his arrest the accused was conveyed to the Entrance Police Station. He agreed to take part in an ERISP but sought legal advice first. He was eventually put in touch by telephone with a barrister. After speaking to him the accused again agreed to take part in an ERISP. Detective Griffith prepared to interview the accused and amongst material and statements he had assembled for this purpose he had a copy of the notes of the conversation taken by Constable Dyer. Griffith gave evidence that he had the notes so that he could put to the accused during the course of the interview the conversation the accused had with McCarthy to have the accused adopt it. 32 The ERISP initially commenced at 7.39am on 20 October. Griffith asked the accused questions about himself and the deceased's family and he answered the questions. He was asked about his relationship with the deceased and said that there had been no violent episodes before the previous night although he stated that it "hasn't really been a great relationship". He started to answer questions about the events leading up to the stabbing when a problem occurred in the recording machine. This was at 8.09am. 33 The ERISP was recommenced at 10.46am. The accused continued to answer questions about the events leading up to the stabbing. He spoke about an argument at 10.30pm because the children were still out of bed. At Q345 he was asked about whether he had used a set of knives that were in the house that evening. He replied, "I don't wish to comment". He was asked about police being out the front of the building. He agreed there were police there. He was asked, "Can you tell me why the police were out the front?" and he replied, "I don't wish to discuss it." 34 The following questions and answers then took place:

Q350 Do you wish to discuss with me any point (sic) why the police were at, outside your address last night?

Q352 Mr Naa, why would the police be there to arrest you?

Q353 As I said before, Detective Senior Constable Jones and myself are making enquiries regarding the fatal stabbing of Kara Kenny. Do you wish to tell me anything in relation to the circumstances which led to Kara Kenny being stabbed?

Q354 Do you have any knowledge of how Kara Kenny may have been stabbed?

Q355 Did you have any involvement in the fatal stabbing of Kara Kenny last night, the 19 th of October, 2007?

Q356 No, we don't have too. You don't want to, if you don't want to discuss this point well, we won't go down that avenue.

A. Well let's not go down that point cause I have already said it numerous times I don't wish to discuss that part of it.

Q357 OK. So just to clarify, is it right you don't really wish to discuss anything after that last argument involving the children having a bath?

A. No, I don't wish to discuss any more after that argument. 35 Further questions were asked of the accused until Q396 after which formal parts of the interview were conducted. From Q358 to Q396 no further questions were asked about the events of the night. Section 281 The section 36 Section 281 is as follows:

281 Admissions by suspects (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, other than an indictable offence that can be dealt with summarily without the consent of the accused person.

(2) Evidence of an admission to which this section applies is not admissible unless:

(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.

(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.

" official questioning " means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.

" reasonable excuse " includes: (a) a mechanical failure, or

(b) the refusal of a person being questioned to have the questioning electronically recorded, or

(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

" tape recording " includes: (a) audio recording, or

(c) a video recording accompanied by a separately but contemporaneously recorded audio recording. 37 There is no doubt that statements made by the accused during the course of conversations with officers McCarthy and Lawson are admissions for the purpose of the section. The prosecution wishes to lead them in evidence as relevant to the accused's intention at the time of the stabbing and on the issue of substantial impairment. 38 There is also no doubt that the accused was at the time suspected or could reasonably be suspected of having committed an offence, being both the stabbing of the deceased and an offence in relation to his threats to police.

Official questioning 39 I have considerable doubts whether on any use of the term "questioning" that this is what McCarthy was engaged in with the accused. It seems to me that "questioning" involves more than asking one or more questions in the course of a conversation. However I will consider this issue further when I deal with s 139 of the Evidence Act. 40 The decisive issue for the purpose of s 281 is whether the questioning, such as it was, was questioning "in connection with the investigation of the commission or possible commission of an offence". Mr Siva for the accused has argued strenuously that it was, first because it was obvious that officer McCarthy was there as a police officer to investigate the two reports that she had received by police radio, the latter being the stabbing of a female. Secondly it is noted that she asked the accused on a number of occasions during the conversation, which Mr Siva referred to as "an interview", questions about what he had done and why he had wanted the deceased dead. It was submitted that these questions were asked in connection with the investigation for which the officers had arrived at the scene. 41 The accused relies upon a number of decisions as to the legislative purpose behind such a provision and the scope of its operation. He also, of course, relied upon the decision of James J at the earlier trial. 42 After setting out the relevant provision and a short account of the facts, James J stated:

The expression "in the course of official questioning" in a similar Tasmanian Act was discussed by the High Court in Kelly v The Queen (2004) 218 CLR 216 particularly at par 45 of the joint judgment of Gleeson CJ, Hayne and Heydon JJ. In this paragraph of the joint judgment the width of the expression "in the course of official questioning" was emphasised. An admission which is entirely non-responsive to any question or is uttered during a pause in the flow of questions without being stimulated by any particular question falls within the expression. The words "in the course of" do not require that there be any causal connection between the official questioning and the admission and a monologue in response to a general enquiry about what happened has been held to be in the course of official questioning.

The expression "in connection with" is a very broad expression and, in my opinion, the questioning by the police officers in the present case should be regarded as being questioning in connection with the investigation of the commission of an offence and, accordingly, official questioning.

R v Horton 43 The provisions found in s 281 were originally enacted in s 424A of the Crimes Act 1900. They were first considered in R v Horton (1998) 45 NSWLR 426. That case is chiefly concerned with the meaning of the term "admission". However Wood CJ at CL stated at pp 21-23:

The mischief to which s424A was addressed appears in the Second Reading Speech (Hansard Proceedings of the Legislative Council 24 May 1995) concerning the Evidence (Consequential & Other Provisions) Bill. It was there said: In closing I wish to make brief comments on the two Bills which are cognate with the Evidence Bill. The first of these, the Evidence (Consequential and Other Provisions) Bill will repeal the Evidence Act 1898 and the Evidence (Reproductions) Act 1967. In addition, it will make amendments to various other Acts which will be required as a consequence of the enactment of the Evidence Bill. It also makes an amendment to the Crimes Act 1900, making the tape-recording of admissions to police compulsory where an accused person is suspected of an indictable offence that may not be tried summarily without the defendant's consent. The Police Service has already introduced a system for the electronic recording of interviews, implementing the 1986 report of the criminal law review division of the Attorney General's Department. That report set out four objectives for adopting an electronic recording system: '1. To provide the Courts with a reliable account of statements made by persons accused of crime whilst in police custody.

To provide an objective means of resolving disputes about the conduct and substance of police interviews. 3. To deter and/or prevent the use of unfair practices by the police prior to, during and after interviews; 4. To deter the making of unfair and false allegations of improper behaviour by police.' This bill implements one of the recommendations of that report by providing that any unreasonable failure to adhere to the system will result in the inadmissibility of the evidence. The courts are thereby enabled to supervise the operation of the system."

It was, in my view, directed to the very mischief that Jordan CJ identified in Jeffries, to ensure the integrity of the evidence of police witnesses concerning representations of any form attributed to accused persons, and to provide an objective means of resolving any dispute concerning that kind of evidence. In this respect it provides, for NSW, an additional protection to that arising under Pt3.4 of the Evidence Act, which is concerned with "admissions" in the extended sense defined in the Dictionary to that Act.

If given the narrow definition contended for by the respondent, it will not achieve its intended purpose, and may encourage resort to stratagem whereby police witnesses fabricate accounts of conduct of apparently exculpatory statements, in the expectation that they might be used against the accused as weakening his credibility, or as demonstrating a consciousness of guilt, or as removing the factual basis for a defence that might be suspected of being available, or as otherwise painting the accused in an unfavourable light. I stress that no question of any such impropriety on the part of Constable Evans arises in this case, but that has no significance for the question of interpretation that arises.

The provision is protective legislation, and in the absence of a clear legislative intention to the contrary, I am unpersuaded that it should be read down in the manner suggested by the respondent.

R v Reid 44 R v Reid [1999] NSWCCA 258 is significant chiefly because it was held that, notwithstanding that s 424A spoke in terms of admissions being inadmissible unless they are electronically recorded, the section only operates where objection is taken to the admissibility of the evidence. 45 Smart AJ referred to what Wood CJ at CL had said in Horton, above and went on:

[63] It was submitted by the Crown that s424A was designed to deal with cases where there is a dispute as to what was said and done. However, it has the deeper and more fundamental purpose of endeavouring to ensure the integrity of the evidence of police officers as to admissions. The method adopted is to make the recordings of admissions to police compulsory. To avoid the requirement of taped recordings the Crown must prove that there was a reasonable excuse why a tape recording could not be made. If a tape recording could reasonably have been made and was not, it will not assist the Crown that some truly independent person heard what was said as between the police and the accused.

[65] Police officers attending a crime scene frequently ask those present what happened and the responses of those present often determine the future course of police investigations. An accused may make important admissions at the scene in such circumstances. The police officers may not have a pocket audio tape recorder with them. I refrain from making any general comment as to whether a judge should find a "reasonable excuse" as much will depend upon the circumstances.

[66] The strongly preferable course is that, in cases of serious crime, interviews with questions asked and answers given at crime scenes be recorded by an audio tape reorder, albeit that it is a pocket one and only one recording can be made. I am assuming, based on experience, that the police and the prosecution will seek to rely on any admissions.

[67] It is important that, if no adequate recording is made at the scene, the admissions alleged to have been made there and intended to be adduced in evidence are put to the accused in a fully recorded interview as early as possible for his acceptance or denial. Failure to do so would be critical unless, of course, the accused declined to participate in such an interview.

[68] If the investigating police officers do not have an audio tape recorder at the scene they should, apart from essential questions, directly affecting the ongoing investigation, conduct their interviews with an accused where tape recording equipment is available if evidence of the admissions is intended to be led.

[69] Attempts to circumvent s424A will not be tolerated. The stratagems so far used have included interviews at the scene or in a police car or at a police station and of the recorded in a police notebook, whether signed or unsigned. These occur before any ERISP and sometimes in substitution for an ERISP. 46 Spigelman CJ stated:

[6] Smart AJ makes a number of comments as to the application of s424A and what is desirable conduct on the part of police with respect to these matters. His Honour's remarks are based on an assumption that the prosecution will seek to rely on any admissions. 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 s424A must be satisfied.

R v Sharp 47 In an interlocutory ruling on the admissibility of unrecorded admissions in R v Sharp [2003] NSWSC 1117; 143 A Crim R 344 I had cause to consider the policy behind the provision. That was a case in which a police officer questioned the accused in a motor vehicle outside her premises that they were about to search. The conversation concerned her co-offender and whether he was dangerous. I held that the questioning fell within the ambit of s 281 but that there was a reasonable excuse for the failure of the police officer to record the conversation. During the course of the judgment I stated:

[15] "Official questioning", for the purposes of s 281, means "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". I acknowledge once more that the policy behind the section should impact upon how the words of the provision are interpreted or applied. I am also conscious of the apparent width of the term as defined in the section.

[16] Further, I appreciate that there is to some degree an interrelationship between "official questioning" and "reasonable excuse". The wider the interpretation given to "official questioning", and, thus, the more extensive the obligation on police to electronically record conversations with suspects, the more likely it is that a reasonable excuse might be found for not recording a particular conversation in which an admission occurs. But the term "official questioning" must, in my view, have some limit and the conversation under consideration must be reasonably capable of being construed as questioning by a police officer.

[17] The policy behind the legislation is, as I have stated, obvious. It is an attempt to limit the opportunities both for a police officer to fabricate the making of an admission by a suspect, and for an accused person to challenge evidence of the making of an admission at a trial of a criminal offence. However, Parliament could have gone further in that endeavour, had it wished to do so. It could have required that any admission, allegedly made by a suspect, be inadmissible unless electronically recorded. If the legislation had been to that effect, it would have been irrelevant whether the admission occurred in questioning or otherwise. But it did not do so, and there is nothing in the Second Reading Speech to indicate that its purpose was other than to regulate police questioning. It is, in my view, inappropriate for the courts to interpret the legislation to bring about that result, however desirable it may be. There can be no doubt about the meaning of the word "questioning" and there is no occasion to give it any other meaning than it generally possesses.

[18] There are clearly occasions where it will be necessary for a police officer to ask a suspect or other person a question but where there may be some doubt, to my mind at least, whether the questioning falls within the scope of the provision. One such occasion may be when the suspect is being processed by the custody officer under Pt 10A of the Crimes Act. Yet questioning of the accused by the officer in accordance with the Part may literally fall within the meaning of "official questioning" and hence the section might operate to exclude any admission made at that time. An admission which is made during that process and which is not recorded might be admitted into evidence because there would be a reasonable excuse for failing to record the admission because it was unexpected and unresponsive to the question asked.

[19] But it seems to me that, because the legislation does not require that all admissions be electronically recorded, police should be able to determine with some degree of certainty what is and what is not "official questioning" for the purposes of the section and thus know when it is that they should take steps to have a conversation electronically recorded to preserve any admission made by the suspect. However, where a police officer engages a suspect in conversation on any matter touching the investigation of an offence without recording the conversation, the officer takes a real risk that a court will find it to be official questioning regardless of the belief of the officer on that subject. As with Detective Hall in the present matter, if the police officer ought to have known that he or she was engaged in official questioning at the time an admission is made, a reasonable excuse for a failure to record an admission will not arise simply because the police officer might not have realised that the conversation was "official questioning" for the purpose of the section.

[20] I hesitate to attempt to give any more meaning to the words of the section that arise from the definitions contained in it and the policy behind the legislation. But the word used is "questioning" and it seems to me that it at least implies that the police officer is attempting to elicit from the person a response that the officer foresaw might provide information relevant to the investigation of the commission of an offence or possible offence, or be to the person's prejudice in that regard. I would be prepared to find in an appropriate case that statements made by the officer to the suspect might amount to "questioning" even though there may be no question asked. However, the mere fact that an admission occurs in response to a question or statement made by a police officer cannot retroactively convert the conversation into "official questioning" if it did not fall within the definition at the time the admission was made.

[21] I wish to emphasise that, in my opinion, the court is required to make an objective assessment of the circumstances surrounding the making of the alleged admission in determining both whether it was made during official questioning and whether there is a reasonable excuse in failing to electronically record it. If my view of official questioning is correct, it would follow that, if the police officer did not foresee that a response might be given to the statement or question made to the suspect but ought to have done so, the conversation would amount to "official questioning". To that extent the conduct of the police officer is subject to the court's review so far as the admissibility of any admission allegedly made by the accused is concerned.

[22] Nothing that I have said in this judgment should be taken as a green light for police to ignore the provision or return to the type of practices that caused Parliament to enact it. The legislature might find that a point in time has been reached when it is opportune to reconsider the provision and further limit the opportunities for disputes to arise about admissions, as occurred before me. This is particularly so given the advance of technology for recording the human voice since the section was enacted. 48 This decision was given before the High Court had reason to consider similar provisions in other jurisdictions. However my reading of those decisions does not affect what I said concerning the policy and intention of the Parliament in enacting these provisions.

Kelly v The Queen 49 Kelly v The Queen [2004] HCA 12; 218 CLR 216 concerned a statement allegedly made by a suspect about half an hour after a video-recorded interview had ceased and without any further questions having been asked. In effect the alleged statement contained an admission that denials made by the appellant in the recorded interview were not true. The police did not respond to the statement nor did they seek to record it at the time. The relevant provisions in relation to the electronic taping of admissions were contained in s 8 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas). 50 The majority of the Court, Gleeson CJ, Hayne and Heydon JJ considered the relevant provisions in the light of the discussions about police interrogations of suspects both in the courts and in law reform bodies. All of the decisions and reports had been concerned with formal interviews, usually in police stations, where persons were in the custody of police, whether or not they had been arrested. The majority stated at [29]:

As a result, it came to be viewed as a commonplace, not only in circles favourable to defence interests but also in police circles, that, despite its financial cost, the electronic recording of police interviews, particularly video-recording, would generate real advantages. It would be useful in providing a means of establishing exactly what was said; in proving that requirements for cautioning and other formalities had been complied with; in narrowing the time within which it could be alleged that threats had been made; in helping to estimate the fairness and propriety of the questioning; and in helping to evaluate, by assessment of the demeanour and manner of the interviewee in responding, the reliability of what was said. 51 Having considered various options taken by different Australian jurisdictions to address the problem, the majority considered the second reading speech of the relevant Minister in the Tasmanian Parliament. However, little was said there about the purpose of the provisions as the bill was also concerned with detention for questioning. 52 The appellant's submissions in the Court were summarised as follows at [44] of the majority judgment:

The appellant accepted that if a police officer arrived at the scene of a crime and asked what had happened, and a person there present at once confessed, s 8 of the Act could not apply, because the person was not, and ought not reasonably to have been, suspected. The same was true where a police officer picked up a telephone and a voice at the other end confessed to a crime. The appellant thus accepted that the point before which video-recording was unnecessary was the period leading up to the time when the police decided, or ought reasonably to have decided, that the maker of the statement was a suspect. But the appellant submitted that after that point, "questioning" extended beyond the posing of interrogative remarks. Its primary meaning included any words spoken between a person who is in custody and who is, or ought reasonably to have been, suspected by a police officer of having committed an offence, and a police officer investigating an offence. The appellant submitted, in the alternative, that if that meaning were too broad, a narrower meaning was available by adding two qualifications: that the words be "spoken within a reasonable period following the conclusion of a period of formal questioning of the suspect by police", and that the words "seek to touch upon or to qualify or modify anything said by the suspect during that period of formal questioning". Hence the narrower meaning applied in this case, where a statement was made close to the time of the video-recorded questioning and where that statement arose out of it in the sense that it modified what had been said during it. It was also submitted that "in the course of" official questioning meant "arising out of" or "as a result of" official questioning. 53 The majority began their consideration of the construction of the phrase "in the course of official questioning" with the following paragraph, that which was referred to by James J (footnotes omitted):

[45] A person may make admissions during a period in which police officers are conducting official questioning without those admissions being responsive to any particular question. This can arise in two ways. First, an answer proffered may simply be quite unresponsive or unrelated to the particular question. Secondly, deliberately or fortuitously, the persons asking the questions may fall silent, and the person who is with them may, whether because of a desire to fill the silence or for some other reason, confess. The legislation does not in terms require that the statement be made "in response to a question put" as s 86 of the Evidence Act 2001 (Tas) does, for example. That language is significant, because it appears in s 86 of the Evidence Act 1995 (Cth) and s 86 of the Evidence Act 1995 (NSW) as well. The language may be contrasted with the use of the expression "in the course of official questioning" in s 85(1)(a) of the three Acts. "Official questioning" is defined in each of the three Acts as meaning "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". That is in substance the same as the definition appearing in s 8(1) of the Act. The contrast between the language of s 86 of the three Acts and the language of s 8 of the Act suggests that a confession which is entirely non-responsive to any question, or is uttered during a pause in the flow of the questions without being stimulated by any particular question, is one which falls within s 8 of the Act. The words "in the course of" do not require that there be any causal connection between the admission and the official questioning. Thus "a monologue in response to a general enquiry about what happened" has been held to be in the course of official questioning for the purposes of s 85 of the Evidence Act 1995 (NSW) and an answer volunteered by the person being questioned is in the course of questioning even though it is not directly responsive to any question. 54 It does not seem to me that this passage throws particular light on the issue before me. It is concerned with the extent of "the course of official questioning" but not the content of "official questioning". It indicates that during the course of the questioning it does not matter that the suspect says something that is not an answer to a particular question asked. There is no doubt that, if the conversation between McCarthy and the accused was "official questioning", all the accused said during the conversation should have been recorded unless there was a reasonable excuse for the failure to do so. 55 As the joint judgment points out, the legislation with which the Court was concerned did not address all the problems inherent in police questioning. The question as the majority saw it was what part of the problem did the legislation attack. The joint judgment went on (my underlining):

[52] The expression "in the course of official questioning" in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s 8(2)(a) of the Act relatively narrow in the sense that it does not provide that video-recording is a condition for admissibility of all confessions made by persons who are suspected or ought reasonably to have been suspected of having committed a crime: video-recording is only a condition for admissibility of those made "in the course of official questioning". It renders s 8(2)(a) of the Act relatively broad in the sense that it does provide that video-recording is a condition for admissibility of confessions made "in the course of official questioning", without any limitation turning on whether the maker of the confession is in custody or under arrest. The requirement that confessions be video-recorded extends to confessions made anywhere so long as they are made "in the course of official questioning" - whether in police stations, in police cars, at the scene of a crime, or during informal encounters. The difficulty of video-recording confessions in particular circumstances is met by ss 8(2)(b)-(d) and (3)(a)-(d) of the Act. But whether the expression "in the course of official questioning" is viewed as making s 8(2)(a) narrow or broad, it stipulates a relatively clear criterion, suitable for application by police officers, whose usual procedures are formal and methodical. 56 McHugh J was in the minority in Kelly. However he was in the majority in a later case concerning the interpretation of similar legislation and I should refer shortly to what he said about the purpose of the provisions. Having reviewed cases and other material concerned with the reliability of admissions made during police investigations, he stated at [104]:

The mischief at which s 8 is aimed is clear: the attack on the integrity of the administration of justice by false or unreliable confessions or admissions allegedly made by suspects during a police investigation of a serious criminal offence. It should be interpreted, so far as possible, to overcome that mischief. The prohibition in the section may not be confined to oral confessions. Arguably, it includes written as well as oral confessions unless "in the course of official questioning" impliedly excludes a written confession or admission. In any event, however, the section's effect on the mischief that it was intended to overcome would be seriously undermined if "in the course of official questioning" were defined by the clock and the officer's testimony as to the times when questioning commenced and ended. To construe s 8(2) in the way that the learned judges did in the Supreme Court of Tasmania is to undermine its purpose and to fail to deal effectively with the mischief at which it is aimed. Such an interpretation would also make the section's operation hostage to the oral evidence of the police officers as to when the questioning commenced and ended. 57 Later he stated (my underlining):

[106] Given the purpose of the section, there is no difficulty in construing the words "confession or an admission ... made in the course of official questioning" as referring to a confession or admission made in connection with police questioning. Nor do I think there is any difficulty in holding that the section applies to any confession or admission that is made in response to an intimation that the officer intends to question the suspect. The legislature is not likely to have intended the section's preclusion to operate only on confessions or admissions allegedly made after a police officer has asked a question connected with the investigation, however trivial it might be. Of course, the confession or admission must be related to police questioning in connection with the investigation, but it will be so related if it is made in response to an indication that the suspect is to be questioned . It borders on the absurd to think that s 8 does not apply to a confession or admission made immediately after the officer has said, "I want you to come to the station for questioning", but applies to a confession or admission made in answer to the officer's first question: "What can you tell me about the assault on X?" To so hold would make "a fortress out of the dictionary". It would treat the term "questioning" as a precise criterion of admissibility rather than as an element in a compound conception that is concerned to limit the admissibility of "police confessional evidence".

[107] In the present case, the alleged admission - if it was an admission, and I doubt that it was - was directly connected to the extensive questioning by the police officers that had occurred about an hour earlier. The Crown did not argue that it was not an admission. Because that is so, it was an "admission" to which s 8 applied. The learned trial judge should have rejected evidence concerning it. 58 Nothing in these paragraphs seems to me to require that the provisions in s 281 be construed to cover the factual situation in the present case having regard to the perceived purpose of the legislation in relation to what is clearly questioning by a police officer in order to obtain information relevant to an investigation of an offence. 59 Kirby J was also in the minority in Kelly. His Honour said this about finding the legislative purpose of the particular provision being considered (my underlining):

[141]……………..Having said this, the meaning of the expression "in the course of official questioning" in the Tasmanian Act in issue in this appeal remains to be ascertained. The ambit of that expression will be clarified by the circumstances of particular cases. The task of a court, obliged to give meaning to the expression, is to apply the statutory words to the case in hand . The task of this Court, in elucidating the expression, is to do so by reference to general principles that will assist in the later application of the legislation, and like provisions, in a wide range of cases in which circumstances will inevitably be different and the statutory words will need to be given content. 60 He later stated:

[162] The object of the Act was to discourage "police verbals", to promote police integrity, to save court time and to ease the task of the jury by such procedures. I agree with the joint reasons that the prosecutor's argument, that the Act was addressed solely or mainly to unsigned written confessions, should be rejected. The procedures spelt out in the Act indicate a parliamentary consciousness of the risks and difficulties presented by just such an oral exchange as was alleged to have happened in the appellant's impugned statement. Given the language and objects of the Act, it cannot be the case that it is left to police officers alone to determine conclusively when the "course of official questioning" is concluded.

[163] Yet, by adopting the approach stated in the joint reasons, that "official questioning" concluded with the statement to that effect by the interrogating police officer, the switching off of the video recording and departure from the police recording room, effectively it is left to police to mark the boundaries of the obligations imposed upon them by Parliament. Such a construction is unacceptable given that the object of the Act was to put checks on the conduct of police officers. It would seriously undermine the achievement of that object to permit those placed under scrutiny to determine the limits and termination of the duration of their own scrutiny. A more objective criterion, consonant with the language and objects of the Act, must be adopted. 61 Ultimately his Honour concluded:

……………using the language of the Act, I would conclude that the "course of official questioning" begins, in the case of an accused person who is or ought reasonably have been suspected of an offence and who is later tried for a serious offence, when that reasonable suspicion arose, or ought reasonably to have arisen, in the minds of the police officers detaining that person. It is not terminated or interrupted by silence on the part of the police officer. It includes responsive or unresponsive statements made whilst the accused is detained by the police officer in connection with the investigation of the commission, or the possible commission, of an offence. The official questioning is not concluded at the termination of any formal interview, the termination by police of video recording or other decisions wholly within the power of police officers. The termination only occurs when the investigation of the offence whilst the accused person is in police detention is terminated either by the release of that person or by the action of police in bringing the accused to a judicial officer upon a charge laid by the police officer concerning an offence. 62 Again I see nothing in his Honour's analysis of the purpose of the provisions or its scope that would have direct application to the present case. 63 The present facts are so far beyond any consideration that was being given to the problem of police interrogations and the means of addressing it by the High Court in Kelly that nothing their Honours stated seems to me to suggest that the provisions should be interpreted in such a way as to capture the situation that occurred on this particular night. As Kirby J stated, the object for the court in deciding whether the section applies to a particular case is to determine that question having regard to the particular facts before the court by applying the general principles in construing the section provided by the High Court. Nicholls v The Queen 64 The High Court returned to consider provisions similar to those with which I am now concerned in Nicholls v The Queen and Coates v The Queen [2005] HCA 1; 219 CLR 196. The provisions there were found in s 570D of the Criminal Code (WA). The issue arose in the appeal by Coates as to whether admissions allegedly made by him during a break in a recorded interview and not subsequently adopted by him were admissible. The issue was whether there was a reasonable excuse for the failure to record the admissions. It should be noted that the legislation under consideration did not use the term, and hence had no definition of, "official questioning". It is also significant that the provisions use the word "interview" on a number of occasions. 65 McHugh J was one of the majority judges that held that there was no reasonable excuse under the legislation for the failure to record the "interview" between the accused and the police. He held that term "interview" covered the whole of the conversation between the police and Coates while he was under caution in the police station, after video-taping had been suspended and even though the particular conversation was not initiated by police. 66 Callinan and Gummow JJ, who in a joint judgment also held that there was no reasonable excuse under the legislation for the failure to record the admissions, held (footnotes omitted):

[152] What occurred in this case answers none of the explicit descriptions of reasonable excuse contained in s 570D(4)(a), (b), (c) or (d). The appellant did not refuse to consent to his interview being videotaped. We do not overlook that "reasonable excuse" is inclusively defined, and that therefore circumstances not within the explicit definition might still give rise to a reasonable excuse. In our opinion, however, what occurred falls so far short of, and is so different from, any of the defined circumstances that it could not amount to a reasonable excuse; nor could it be objectively regarded as a reasonable excuse. No attempt was made by any police officer to have Coates repeat on-camera what he was alleged to have said off-camera even though there was a reference to what he might say when the video resumed. It has been submitted however that the admission was made when it was not practicable to videotape it. We disagree. 67 Kirby J was also in the majority in holding that the admissions should have been excluded. He stated (footnotes omitted):

[215] Nothing said in Kelly decides the outcome of the present appeal. It concerns different legislation; different provisions for exceptions from the recording obligation; and quite different factual circumstances. All that is in common between the two cases is that the persons involved were suspects in police custody under suspicion of murder; that recording on videotape of an interview between police and suspect took place; that important statements were allegedly made to police (denied by the suspect) that were not recorded on videotape; that it was not suggested that the videotape equipment malfunctioned or was unavailable for any reason; and that the alleged admissions off-camera, that were later recounted by police witnesses at the trial, were not immediately put to the accused on camera so that the accused's response could be recorded contemporaneously and seen by the jury, although this course would have been practicable in the circumstances.

[216] For the reasons which McHugh J and I gave in Kelly , I remain of the view that this Court should give such legislation a purposive construction. Various verbal or linguistic reasons can be mounted to sustain the construction urged by the respondent. The case would not be in this Court were it otherwise. However, it is not a necessary construction. It tends to defeat the achievement of the objects of the Western Australian Parliament to put an end, so far as possible, to contests of the present kind.

[217] True, the Western Australian Parliament did not enact an absolute bar on the reception at trial of unrecorded admissions to police. Circumstances will arise where the provisions of the Code are inapplicable (eg admissions blurted out before the accused person is a suspect) or, although applicable, where the admission is warranted (eg because the prosecution proves that there is a "reasonable excuse" for not recording or the court is satisfied of "exceptional circumstances" that justify the admission of the evidence "in the interests of justice"). 68 There is nothing in the reasons given by members of the High Court that assist me in determining the question of whether the conversation between the police and the accused during the siege is inadmissible under the section. R v Taouk 69 The Court of Criminal Appeal of this State considered the provisions in s 281 in light of what had been stated in Kelly in R v Taouk [2005] NSWCCA 155. That case is also very factually different from the present. There the appellant entered a police station and went to the front desk. The police officer who then spoke to the appellant gave the following evidence of what the occurred as follows:

I approached the counter and the defendant (that is, the accused) said to me 'I want to report a disturbance at my house' I said: 'what's happened?' He said: 'I have just shot someone at my house. I had an argument with my brother and he had a gun. I took it off him and I fired a few shots'. I said: 'Is anyone hurt?' He said: 'I don't know'. I said: 'What's the address'? He said: '61 Redmyre Road Strathfield.' I said: 'Just a moment'. 70 In a later ERISP the appellant was asked about what had happened at the police station and denied that he had given the answer to the question, "what happened?" as was recorded by the police officer. The issue for the Court was whether the answer recorded by the officer should have been admitted. The trial judge had ruled that the question asked of the officer did not fall within the ambit of s 281 because the officer at that time had no reason to suspect the appellant of committing a crime. 71 The Court held that the trial judge had determined a question of fact and there was no reason for the Court to review it. There is nothing in this decision that impacts upon the present case. Carr v Western Australia 72 Although neither party drew my attention to Carr v Western Australia [2007] HCA 47; 232 CLR 138 I should make some reference to it. In that case the High Court had reason again to consider the Western Australian provisions. There the appellant made admissions in conversations with police during administrative procedures that occurred after the formal interview had been concluded. These procedures were routinely videotaped and a recording had been made of the conversation containing the admissions. It was argued, relying upon provisions in the relevant legislation, that the admissions should have been rejected because the appellant did not know that what he was saying was being recorded and had not consented to the recording. The appeal was dismissed. 73 Gleeson CJ considered the construction of the relevant legislation. After referring to the fact that the section had not been intended to displace common law principles relating to the exclusion of admissions, he stated (footnotes omitted and my underlining):

[5] Another general consideration relevant to statutory construction is one to which I referred in Nicholls v R. It was also discussed, in relation to a similar legislative scheme, in Kelly v R. It concerns the matter of purposive construction. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act"). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose .

[7] As explained in Kelly and Nicholls, the general purpose of legislation of the kind here in issue is reasonably clear; but it reflects a political compromise. The competing interests and forces at work in achieving that compromise are well known. The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object? 74 Gummow, Heydon and Crennan JJ in a joint judgment considered the use of the word "interview" in the relevant provision. The appellant had argued that the conversation with the officers had not been an "interview" as it lacked the formality of questioning. Their Honours held (footnotes omitted):

[50] Even if it be accepted that the term "interview" connotes a degree of formality, it is not apparent where that line is to be drawn. The conversation between the appellant and the police officers in the present case was no mere informal chit-chat: the police officers fell in with the appellant's style of speech, but they structured the relevant part of the conversation as a patient and deliberate sequence of questions and answers designed to elicit admissions. However, there is much force in the observation of Ormiston J in R v Raso that: it would be difficult to identify that form of questioning which constitutes an 'interview' and that which constitutes some less formal kind of questioning in circumstances where the questions are being administered by the police.

Raso concerned the meaning of s 23V(1) of the Crimes Act 1914(Cth) which at that time included the phrase "interviewed as a suspect". That legislation concerned the tape recording of such interviews, and Ormiston J considered it: artificial, and possibly conducive to the abuses which the legislation is trying to avert, to draw distinctions between questioning which takes place on a relatively casual basis and questioning which results from some formal or organised interview. 75 There is little in this decision of relevance to the task before me. However, to the extent that provisions of s 281 refer to the word "interview" it does not seem to me having regard to that part of the joint judgment quoted above, that the conversation between McCarthy and the accused could be called an "interview". As Gleeson CJ pointed out, it is relevant for me to consider how far Parliament intended to go in addressing the problem of unrecorded admissions to police when interpreting the section. Decision The application of s 281 76 The significant part of the definition of "official questioning" so far as the present case is concerned is "in connection with the investigation of the commission or possible commission of an offence". The attention that has so far been paid to the section or similar provisions has been in respect of the scope and nature of official questioning. If the conversations between McCarthy and the accused were official questioning, then there is little doubt that the whole of it would fall within the scope of the section. But in my view the conversation was not "in connection with the investigation…of the commission of an offence" and, therefore, the section does not apply. 77 Although, as James J noted, the words "in connection with an investigation" are of wide import, in effect they confine or focus the scope of the questioning between a police officer and a suspect. Without these words "official questioning" would arise whenever a police officer is questioning a person who is or, ought reasonably to have been, suspected of committing an offence whatever be the content or circumstances of the questioning. As I pointed out in Sharp, that is not what Parliament sought to achieve by the provisions. There may be formal or informal police procedures before or after arrest that do not fall within the ambit of the section because they are not in connection with an investigation. As Gleeson CJ stated in Carr:

The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object?

In my opinion Parliament did not go so far or intend to go so far as to cover the factual situation that arose here. 78 True it is that the two officers, McCarthy and her partner, attended the scene in answer to radio calls they had received indicating first that somebody was damaging a house and then that a female had been stabbed. But as soon as they arrived at the scene they were confronted with the accused armed with two knives and acting in an aggressive manner towards them. It is clear that from this point they had no intention or purpose other than to try to get the accused to disarm and in the meantime to protect themselves and others from him. 79 The conversation between McCarthy and the accused could not be further from an interrogation of a suspect by a police officer, even an informal one at the scene of a crime. First the accused was armed and committing a serious offence at the time by his threatening conduct to the two officers. Secondly the accused was at time attempting to have the police shoot him. Thirdly both officers were armed with weapons trained on the accused. Fourthly McCarthy was seriously considering whether she would need to shoot the accused and at one stage had her finger squeezing the trigger. Fifthly McCarthy was not seeking to find out information from the accused but to build some rapport with him so that she could gain his trust with the ultimate purpose of having him drop his weapons. This was negotiation not interrogation. I accept that the subjective purpose of the officer engaging with a suspect might not be decisive as to whether the officer is involved in "official questioning" but I believe it is relevant. Sixthly this was a "police operation" in response to a "critical situation" as Chief Inspector Winmill described it. The concern was to keep the accused talking in order to secure the safety of himself, police and others. 80 In my opinion s 281 does not apply to the admissions allegedly made by the accused at the scene of the stabbing.

Reasonable excuse (a) s 281(2)(a)(i) non-recording of admissions 81 If I had been of the opinion that the s 281 applied, the question then would arise whether the section has been complied with or, if not, whether there was a reasonable excuse for that failure. 82 An electronic recording was made of part of the conversation between McCarthy and the accused. This was as a result of Sgt Lawson attaching the microphone from the ICV unit to his lapel as he approached, and then stood beside, McCarthy. The sounds picked up by the microphone were recorded to the hard drive in the vehicle and then transferred to a disc. 83 The recording is of very poor quality however some of the conversation can be heard. Attempts were made by technicians to enhance the quality of the audio track and achieved a measure of success. Officer McCarthy has listened to the disc and made a transcript of what she could hear although it is very sparse. If the evidence were admitted, the jury would be invited to listen to the disc through earphones. 84 It is clear beyond question in my mind that there was a reasonable excuse for the failure to record the conversations electronically by any other means. First there was no means that McCarthy or her partner could have attempted to record the conversations. They were taken up with pointing their weapons toward the accused to protect themselves and others from him. As other police arrived they were stationed, or stationed themselves, around the area in which the accused was, also with their weapons drawn. They were intent on protecting themselves and others. 85 There were hand-held tape recorders at one of the police stations. They were used normally for the recording of interviews with juveniles and usually taken out of the station with a particular purpose in mind. It was not normal for the police to take recording devices when they went on patrol. None of the junior police who arrived at the scene had recorders with them. 86 Detective Senior Constable Griffith believed that he had a recorder in his vehicle but never thought of using it. However, he believed that it would have been inadequate to record what the accused was saying from wherever it might have been held. 87 Chief Inspector Winmill may have had a hand-held recorder in his vehicle although he is not sure whether he did. In any event he would not have considered using it. He believed that, if he were to have placed an officer within a distance from the accused to have what he said recorded, it would have placed that officer in danger from the accused. Inspector Winmill believed that in the situation it was important to keep the accused talking and placing a recorder within sight of him might have had the opposite effect. 88 Chief Inspector Winmill did appreciate the significance of trying to record what was occurring and so he asked Dyer to take notes. This, however, was not for the purpose of investigating the offence or recording admissions made by the accused. It was because the Inspector saw this as a situation that could itself result in an investigation if the accused or any other person had been injured. It was a "police operation" and as such subject to review by the Coroner or police internal investigations. 89 To the extent that the admissions made to the police were not recorded or recorded to such an extent that little of what the accused said was captured, there was in my opinion a reasonable excuse for that failure.

(b) s 281(2)(a)(ii) Non-adoption by the accused 90 The accused was interviewed after his arrest in an ERISP, the relevant parts of which have been set out above. The officer in charge of the investigation, Det Sgt Griffith, interviewed the accused and for that purpose had with him the notes made by Dyer. He gave evidence that he intended to put these notes to the accused for the purpose of having him adopt them. 91 However, it is obvious that the accused determined not to answer questions about anything that occurred after he and the deceased had an argument about the children. The relevant part of the interview is set out above. 92 In my opinion it was open to Griffith to conclude that the accused was not going to answer questions about what had occurred during the standoff with police as he had made his intentions quite clear as to what questions he was prepared to answer. The accused had been provided with legal advice. Not only was it reasonable for Griffith to decline to ask him further questions, arguably it would have been improper for him to do so. 93 Although questions were asked of Griffith on the voir dire as to why he had not sought to ask questions about the admissions early in the interview, it was in my opinion a matter for the police officer as to how he structured the interview. He said that it was his practice to ask about admissions late in the interview after having the accused give his account of the incident. That was an approach that was reasonably open to him. 94 In my opinion there was a reasonable excuse for the failure of the police to have a recording of the accused adopting the admissions said to have been made by him at the scene.

Failure to give a caution 95 Section 138 of the Evidence Act is as follows:

138 Exclusion of improperly or illegally obtained evidence

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth. 96 Section 139 concerns the obligation on a police officer to administer a caution. It is as relevantly follows:

(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest for an offence at the time, and

(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and

(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and

(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and

(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.

(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if: (a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or

(b) the official would not allow the person to leave if the person wished to do so, or

(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

(6) A person is not treated as being under arrest only because of subsection (5) if: (a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or

(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions. 97 It is clear in the present case that no caution was given to the accused during the course of the conversation that took place between the police and the accused during the standoff. 98 The first question is whether the section applies to the situation in which the police were involved. It depends upon whether the police were engaged in "questioning" the accused. The word is not defined in the Act. In general parlance it means "asking questions of someone" or "interrogating". I do not believe that the word means "a conversation during which questions are asked". Clearly to my mind the section was aimed at formal or informal interrogation of a suspect by a police officer for the purpose of the officer obtaining information, whether or not at the time of the interrogation the suspect was formally under arrest. 99 Of course the section is aimed at the protection of a suspect and should not be unduly confined by technicalities or restricted so that it does not achieve the purpose for which it was enacted. But neither should it be construed to apply to a situation to which the words used in the section are not appropriate. The section could easily have defined the word "questioning" to give it a meaning that it does not naturally convey. The section broadens the concept of "arrest" to cover situations not normally falling within that term. 100 One of the difficulties with code-type provisions is that they do not allow for flexibility to meet the circumstances of a particular case. Here, although the accused was not under arrest and was committing an offence at the time of the conversations between the officers and him, the section operates as if he were under arrest. This is notwithstanding that the section could never have been intended to apply to such a factual situation as confronted the police here. 101 I do not believe that the conversation between officer McCarthy and the accused amounted to "questioning" for the purpose of s 139. The questions asked by McCarthy were completely incidental to what she was trying to achieve: to convince the accused to put down the weapons for the safety of himself and others. She was not seeking information from him. She was seeking to distract him, to mollify him and ultimately to persuade him to disarm. No bystander watching the incident would have considered that the officer was questioning the accused. The section was never intended to apply to a siege situation where the police were involved in negotiation rather than investigation. 102 In any event, even if I were wrong in that view, it does not follow that the absence of a caution means that the evidence should be rejected. Section 138 applies and I am required to undertake a balancing exercise to determine whether "the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". In determining that balance I am required to consider relevant matters including those mentioned in s 138(3). 103 In the present case the substantial majority of those considerations is very strongly in favour of admitting the evidence. There is no doubt that the admissions made by the accused at the scene are highly probative on the charge of murder and very important in the proceedings. They impact significantly upon the two issues that have been identified: intention and substantial impairment. The offence is clearly of very great gravity. 104 Such contravention as there was by the police in failing to administer a caution is in my opinion relatively minor having regard to the particular facts of this case. The contravention was not intentional: McCarthy never thought of administering a caution because she did not believe that she was questioning the accused in an attempt to obtain admissions. Inspector Winmill believed that a caution would have been inappropriate because it was important that the accused continue to communicate with the police. The contravention was not inconsistent with the rights of the accused under the International Covenant on Civil and Political Rights: see R v Em [2003] NSWCCA 374 at [87]. 105 There will be no other proceedings taken in respect of the contravention. The difficulty of obtaining the evidence without contravention does not seem to me to be a relevant consideration. 106 The decision whether to admit evidence, notwithstanding that it was obtained improperly, is based upon public policy considerations being weighed against one another. In my opinion the weight of those considerations falls very substantially upon the desirability of admitting the evidence. I do not believe that any other view is reasonably open. Section 90 107 The accused did not rely upon any other provision of the Evidence Act than s 138 and s 90. In particular the accused eschewed reliance upon s 85 and did not mention s 84. 108 However at one stage when making submissions as to the exercise of the discretion under s 90 Mr Siva did ask me to take into account that the admissions were not voluntary. This was on the basis that at the time of the conversation the police had their guns drawn. It is perhaps somewhat curious that this submission was made but no reliance was placed upon s 84, which is concerned with admissions influenced by violence or threats of violence. 109 However, I have no doubt that the admissions were voluntary. They certainly were not influenced by the fact that the police had drawn their weapons except insofar as at times the accused was inviting them to kill him. The accused clearly wanted to converse with McCarthy. She gave him the opportunity to do so and he accepted it. The use of first names at the request of the accused is hardly consistent with any fact other than that he willingly entered into a dialogue with the officer. When he grew tired of McCarthy he took up the conversation with Sgt Lawson. It may be that he spoke with them from some psychological need to express his emotions and explain why he had stabbed the deceased. However, although the accused intends to rely upon evidence of psychiatrists, nothing was led before me to touch upon the psychiatric state of the accused at the time of the conversations with McCarthy and other police. 110 In this situation I am quite unpersuaded that it would be unfair, in the relevant sense, to admit the evidence of these admissions at the trial. There has been no suggestion they are unreliable for any psychiatric reason or because he was intoxicated. Quite the contrary, I would have thought that in the circumstances these were reliable statements of his feelings at a time shortly after he had stabbed the deceased. He was able to recall events in considerable detail both of the circumstances leading up to the stabbing and historical matters such as the birthdays of his children and his work history. The potential unreliability of admissions is an important factor in exercising the discretion under s 90 although it is not decisive: See Em v The Queen [2007] HCA 46; 232 CLR 67 at [73] and [111] 111 Section 90 is concerned with the fairness of the trial if the evidence were admitted. In Em v The Queen, Gummow and Hayne JJ in their joint judgment stated:

[107] As pointed out at the commencement of these reasons, the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, "would be unfair". That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as "fair" or "unfair".

[109] When it is "unfair" to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. "Unfairness", whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or "safety net" provision.

[110] That this is the way in which the Act, and s 90 in particular, operates is apparent when two circumstances that may be relevant to the exercise of the common law discretion (the reliability of the confession and the use of improper means to secure it) are considered. 112 As their Honours point out, the failure of the police to caution the accused is to be considered under s 138: see at [119]. I have determined that this fact should not result in the admissions being excluded. To the extent that any other sections of the Act operate, I do not believe they should lead to the evidence being rejected. There is no dispute with the accuracy of the police evidence as to what the accused said during the conversations even though the tape recording is of poor quality. There was no suggestion to officer Dyer that his notes were inaccurate. 113 I do not believe that the accused's freedom to speak to the police or be silent was impugned by any conduct of the police. The fact that later in a less emotional state and after having spoken to a solicitor, he chose to limit the questions he was prepared to answer, does not of itself indicate that, had he been given a caution, he might have taken any different approach at the scene. Simply because an accused may later believe that it would have been better had he not spoken as he did in the presence of police, it does not follow that the earlier statements should not be used against him at his trial. 114 I am unpersuaded that the discretion contained in s 90 should be exercised in favour of the accused.

Order 115 The evidence of statements made to police at the scene of the stabbing admitted into evidence. **********

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