R v Julin [2000] TASSC 50

R v McKenzie [1999] TASSC 36, considered.

Judgment Number: [2000] TASSC 50

1 The accused is charged with committing an aggravated burglary at 7 Lowestoft Avenue, Berriedale on 17 February 2000.

2 At issue is whether the Crown may call evidence of certain admissions made by the accused and evidence of the identification of the accused as one of those seen leaving the scene of the crime.

3 Evidence was called on the voir dire from Mr Peter Stevenson and Constable Gregory Clarke. Mr Stevenson resides at 5 Lowestoft Avenue. At about 3 pm on 17 February 2000 Mr Stevenson heard the sound of breaking glass coming from a neighbouring residence at 7 Lowestoft Avenue. On investigating, Mr Stevenson noted that a glass panel next to the rear door of that residence had been broken and he saw someone moving around inside the residence. After arranging for his wife to telephone the police he kept watch. As he waited in the driveway at 7 Lowestoft Avenue, two male youths walked from the rear of the residence into the driveway. Mr Stevenson and the youths were face to face about three to four metres apart. The youth nearest to Mr Stevenson was taller than his companion and to Mr Stevenson's observation he was the older of the two. Mr Stevenson focused his attention on that youth. He had an unimpeded view of him for several seconds. On seeing Mr Stevenson the youths turned and ran. To no avail Mr Stevenson called for them to stop.

4 Constable Clarke responded to a telephone report of the break in at 7 Lowestoft Avenue. A police officer at the scene informed Constable Clarke by radio that there had been two offenders and they had run from Lowestoft Avenue in a southerly direction towards the Berriedale Caravan Park. Constable Clarke was travelling towards the scene in a marked police vehicle in a northerly direction on Main Road, Berriedale. About 100 metres south of the southern end of Lowestoft Avenue he noticed the accused running in a southerly direction along a path across public land between Lowestoft Avenue and the caravan park. That path is about 15 to 20 metres to the right of the Main Road. Constable Clarke stopped his vehicle in the centre of the Main Road and indicated his intention to make a right hand turn into a parking area to the right of the road. As he did so, the accused looked at Constable Clarke's vehicle, stopped running, and moved behind a bush near the pathway. Constable Clarke found the accused sitting behind the bush. The accused was breathing heavily and sweating profusely. In response to Constable Clarke's questions the accused was unable to explain what he was doing or why he was in the area. Constable Clarke asked the accused if he knew what had happened at 7 Lowestoft Avenue and whether he was alone. The accused responded "I did it all myself. I didn't have anyone with me". Constable Clarke asked if the accused meant breaking into the house and he replied "Yes". Constable Clarke arrested and cautioned the accused. The accused accompanied Constable Clarke to the police vehicle which was parked beside the Main Road.

5 The accused sat in the left hand rear side of the vehicle. Constable Clarke made a written note of the admissions that had been made by the accused and invited the accused to sign it. The accused declined to do so. Constable Clarke then drove to 7 Lowestoft Avenue, a trip of about half a kilometre. During the trip there was no conversation between Constable Clarke and the accused.

6 When Constable Clarke arrived at the scene a police vehicle was parked in front of 9 Lowestoft Avenue. As he drew his vehicle to a halt behind that vehicle the accused said to him, "It's the next door down". In response to that comment Constable Clarke moved his vehicle forward and parked over the entrance of the driveway to 7 Lowestoft Avenue.

7 Mr Stevenson was standing in the driveway of 7 Lowestoft Avenue talking to Constable Lisa Cranefield at the time of Constable Clarke's arrival. Mr Stevenson saw the accused in the rear of Constable Clarke's vehicle and recognised him as the taller of the youths he had seen at the scene a little earlier. He immediately mentioned this to Constable Cranefield. In identifying the accused Mr Stevenson acted of his own volition. Prior to recognising the accused, Mr Stevenson had not been asked whether he could identify the accused.

8 The accused was conveyed to the Glenorchy Police Station where Constables Clarke and Cranefield conducted a video interview with him. In response to the first substantive question put to the accused he relied on his right to remain silent and declined to answer questions. No endeavour was made to obtain the accused's confirmation of the admissions he had earlier made to Constable Clarke.

9 On behalf of the accused it is submitted that evidence of the admissions he made to Constable Clarke is not admissible by reason of the Criminal Law (Detention and Interrogation) Act 1995, s8. It is also contended that the court should exercise its discretion to exclude the evidence of Mr Stevenson's identification of the accused as he sat in the back of the police vehicle on the basis that its prejudicial value outweighs its probative value.

10 The Criminal Law (Detention and Interrogation) Act 1995, s8, provides:

'confession or admission' means a confession or an admission -

(a) that was made by an accused person who, at the time when the confession or admission was made, was or ought reasonably to have been suspected by a police officer of having committed an offence; and

(b) that was made in the course of official questioning;

'official questioning' means questioning by a police officer in connection with the investigation of the commission or the possible commission of an offence;

'serious offence' means an indictable offence of such a nature that, if a person of or over the age of 18 years is charged with it, the indictable offence cannot be dealt with summarily without the consent of the accused person and, in the case of a person under the age of 18 years, includes any indictable offence for which the person has been detained.

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

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

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

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

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

(3) For the purposes of subsection (2), "reasonable explanation" includes but is not limited to the following:

(a) the confession or admission was made when it was not practicable to videotape it;

(b) equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person;

(c) the accused person did not consent to the interview being videotaped;

(d) the equipment used to videotape the interview malfunctioned."

11 In the circumstances in which Constable Clarke came upon the accused, it is inevitable that Constable Clarke suspected the accused had committed an aggravated burglary at 7 Lowestoft Avenue. This was in substance acknowledged by him in his evidence on the voir dire. It was this suspicion that prompted Constable Clarke to stop his vehicle and question the accused on the pathway. The admissions then elicited from the accused are covered by s8(1) as they result from a police officer's questioning of an accused in connection with the commission of an offence which the police officer suspected the accused of committing. The offence, aggravated burglary, is a serious offence for the purposes of s8(1). The admissions are not admissible in evidence unless the requirements of s8(2) are satisfied.

12 The admission made by the accused to Constable Clarke when he stopped the police vehicle outside 9 Lowestoft Avenue requires separate consideration. This is the admission implicit in the accused saying to Constable Clarke, "It is the next door down", when Constable Clarke stopped his vehicle outside 9 Lowestoft Avenue instead of 7 Lowestoft Avenue. Constable Clarke's questioning of the accused near the pathway ceased when he arrested the accused and cautioned him. Thereafter he did not question the accused in the course of the journey to 7 Lowestoft Avenue. The admission volunteered by the accused outside 9 Lowestoft Avenue is only covered by s8(1) if it "was made in the course of official questioning". In my view, the objectives of the Criminal Law (Detention and Interrogation) Act, s8, requires that s8(1)(b) should be construed broadly so as, for example, to extend to matters volunteered in the course of questioning, albeit that they are not directly responsive to questions. Whilst I am of the view that a broad approach should be taken to the assessment of whether a response was proffered in the course of official questioning, I am unable to perceive any basis on which I could find that the accused's comment to Constable Clarke outside 9 Lowestoft Avenue was made in the course of official questioning. The official questioning of the accused concluded prior to the car trip when he was arrested and cautioned by Constable Clarke. Nothing occurred thereafter which warrants a finding that official questioning had been renewed. The admission made outside 9 Lowestoft Avenue is accordingly not subject to s8 and there is no statutory fetter on its admission into evidence.

13 Counsel for the accused submits that this evidence should be excluded in the exercise of the court's discretion. In support of his submission, counsel relies upon the equivocal nature of the admission. The Crown submits that it can be inferred from the accused's apparent knowledge of where the offence was committed that he was involved in the offence. Before arresting the accused, Constable Clarke had told him that the break in had occurred at 7 Lowestoft Avenue. The accused must have realised that was the address Constable Clarke was driving to. The accused's comment may mean no more than that he knew which residence was 7 Lowestoft Avenue and was pointing that out to Constable Clarke. Whilst the significance of this evidence will vary dependent upon the view taken of it by the jury, it is clearly relevant and probative. I am unpersuaded that any prejudice which may arise from it warrants its exclusion.

14 I turn to the admissions made by the accused when questioned by Constable Clarke at the pathway and consider whether they are admissible pursuant to paragraphs (a), (b), (c) or (d) of s8(2).

15 Paragraph (a) has not been satisfied. Inevitably no video tape was made of the exchange at the pathway.

16 For the admissions to be admissible pursuant to par(b), the prosecution must prove on the balance of probabilities that there was a reasonable explanation as to why the video tape referred to in par(a) could not be made and there must be available to the court "a video tape of an interview with the accused person about the making and terms of the confession or admission or the substance of the confession or admission in the course of which the accused person states that he or she made a confession or an admission in those terms or confirms the substance of the admission or confession". In the circumstances in which the exchange between Constable Clarke and the accused occurred, there is plainly a reasonable explanation for the lack of a video tape of it. However, there is not a video tape of a subsequent interview with the accused in which he confirmed the admissions made during that exchange. Whilst, as mentioned in par8 above, there is a video tape of a subsequent interview with the accused, he was not asked any questions about the making and terms of his earlier admissions and he did not confirm the substance of them. He refused to answer any questions. Par(b) has not been satisfied.

17 To rely on par(c) the Crown must prove on the balance of probabilities that there was a reasonable explanation as to:

(i) why the video tape referred to in par(a) could not be made; and

(ii) why the video tape referred to in par(b) could not be made.

Requirement (i) is established. As to requirement (ii) counsel for the Crown submits that the accused's reliance on his right to remain silent is a reasonable explanation for why a video tape which satisfies par(b) could not be made. A similar submission was considered in R v McKenzie [1999] TASSC 36 by Wright J. That case raised comparable issues to those which are before me. The accused, Mr McKenzie, had made admissions in circumstances which could not be video taped. He was subsequently interviewed on video tape but did not confirm his earlier admissions and relied on his right to remain silent. Wright J, at 1-2, said:

"Section 8(2)(a), (b) and (c) have the following effect:

(i) If a confession is made during a videotaped interview, it is admissible (s8(2)(a)).

(ii) If a confession is made and is not videotaped, but there is a reasonable explanation for that, and if subsequently the confession is confirmed during a videotaped interview, then it is admissible (s8(2)(b)).

(iii) If a confession is made and is not videotaped and there is subsequent confirmation of that confession during an interview which is also not videotaped, and there is a reasonable explanation both:

(a) as to the absence of videotape when the confession was originally made; and

(b) as to the absence of videotape during the subsequent interview;

the confession is admissible (s8(2)(c)).

5 Miss Mason argued that s8(2)(c) would also apply to render the original confession admissible if the Crown could show, as it has done in the present case, that a videotaped interview was held subsequently and the alleged original confession was put to the accused person who then declined or failed to confirm it. This argument does not stand scrutiny however. In the first place, the legislation is directed primarily to overcoming perceived problems with the so-called police 'verbal' which was dealt with by the High Court in McKinney's case. Section 8 appears to be designed to ensure that these problems are minimised as much as possible by requiring some means of corroborating police evidence that the accused orally admitted his guilt.

6 It is difficult to see how a recorded interview, during which an accused person fails to confirm a confession attributed to him, in any way lessens the risk that the alleged confession was never made. The mere recording of the allegation in a videotaped interview can never provide corroboration of the original confession. This can only be done by the accused providing an appropriate acknowledgement that he said the things alleged.

7 It may be said that a problem also arises if the interview at which the accused is said to have confirmed the original confession is not itself recorded, but, in certain circumstances, the persons present at that interview may be different from those who elicited the original confession, and they may accordingly provide some independent corroboration of the original admissions. This will not be so in all cases, of course, so the contrast between the two predicated situations is not complete, but some moral justification exists for one which does not exist in the other.

8 The second basis for rejecting Miss Mason's argument is both simpler and more compelling. Section 8(2)(c) refers to the explanation as to why the 'videotape' referred to in pars(a) and (b) 'could not be made'. This is a clear reference to, (a) the videotape which should have been, but was not, made when the original confession was made, and, (b) the videotape which should have been, but was not made when the confirming interview occurred. In my opinion, it would be quite inappropriate to speak of a video recording which has been made of an interview at which an accused person declines to confirm an earlier confession as a 'videotape which could not be made'.

9 This means that as the accused did not confirm his original alleged confessions during the videotaped interview, those statements are inadmissible under s8(2)(c) whether or not there was a reasonable explanation for the failure by the police to videotape the original confession."

18 Counsel for the accused submits that as a matter of law an accused's reliance on his right to remain silent cannot be a reasonable explanation for the lack of a video tape for the purposes of par(c). I do not accept that this is so. The issue is a question of fact to be determined in all the circumstances of each case. The diversity of matters which may amount to a reasonable explanation is not limited by s8(3).

19 I agree with Wright J that s8 is directed primarily to overcoming perceived problems with the so-called police "verbal" which was dealt with by the High Court in McKinney v R [1991] HCA 6; (1990) 171 CLR 468. Consistent with that objective, if an admission which is not recorded in a video taped interview is to be admissible pursuant to par(b) of s8(2), it is necessary to interview the accused on video tape about the admission. This provides some protection against the problem of "verbals". In practical terms, it means the asserted admission must be enunciated in the course of a video taped interview and the accused must be given an opportunity to refute it.

20 The combined impact of pars(a), (b) and (c) of s8(2) is that whenever admissions are made to police officers in the course of official questioning which could not be recorded on video tape, a decision must be made as to whether an effort may be made to proffer evidence of the admissions in subsequent court proceedings. It may be that the admissions have been made and confirmed several times during separate episodes of official questioning, none of which could be recorded on video tape. Regardless of the number of occasions on which the admissions have been made and confirmed, if it is proposed to lead evidence of the admissions in court, an effort must be made to obtain a video tape of an interview with the accused about the making and terms of the admissions in which they are confirmed. In the absence of such an attempt I find it difficult to envisage how the prosecution could satisfy the terms of par(c). Where such an attempt has been made, the issue of whether, for the purposes of par(c), there is a reasonable explanation for why a video tape which satisfies the requirements of par(b) has not been made depends upon all the relevant circumstances. Where a video taped interview has been conducted with an accused within a reasonable time of the making of the asserted admissions in the course of which interview the asserted admissions have been specifically put to the accused and the accused has been given an appropriate opportunity to refute them, I would be strongly inclined to find that there was a reasonable explanation for the absence of a video tape which satisfies par(b). That is not the situation before me. Whilst a video taped interview was conducted with the accused, his admissions to Constable Clarke were not specifically put to him. Notwithstanding that the accused said he would not answer any questions, the asserted admissions should have been spelt out in his presence and he should have been given an opportunity to refute them. As this was not done, I am not satisfied that there is a reasonable explanation for the absence of a video taped interview with the accused which satisfies par(b). For this reason par(c) has not been satisfied.

21 The Crown does not assert that for the purposes of par(d) there are exceptional circumstances which would allow this evidence to be led. As the requirements of s8(2) cannot be satisfied in relation to this evidence, it is not admissible.

22 Counsel for the accused submits that the evidence of Mr Stevenson's identification of the accused as he sat in the back of the police vehicle should be excluded on the basis that its prejudicial value outweighs its probative value. Counsel's concern is that Mr Stevenson's sighting of the accused in a police vehicle prompted him to assume that the accused was one of the offenders. Counsel in substance submits that this identification evidence has little, if any, probative value, and should be equated with evidence of a dock identification. The evidence under challenge is not analogous to the sort of evidence which was criticised in Davies and Cody v R [1937] HCA 27; (1937) 57 CLR 170 and R v Burchielli [1981] VicRp 61; [1981] VR 611. Mr Stevenson's identification of the accused was made within a very short time of his prior sighting of the accused. It was made spontaneously and was not the result of Mr Stevenson's attention being directed to the accused or Mr Stevenson being asked whether he could identify the accused as one of the suspects. It may be that Mr Stevenson's identification of the accused was influenced by the circumstances in which he saw the accused. That is a matter to be taken into account by the jury in assessing the weight of the evidence; R v Williams [1983] VicRp 116; [1983] 2 VR 579. The evidence is relevant and its probative value is not outweighed by its prejudicial effect. I will allow the evidence to be led.