R v Kathleen Sharp

Admissibility of evidence. 1 HIS HONOUR: The accused stands trial before a jury on a charge of accessory after the fact to murder and, in the alternative, accessory after the fact to manslaughter. Objection was taken to conversations alleged by the Crown to have taken place between the accused and investigating police and which, on the Crown case, contain admissions of her knowledge of the circumstances in which the deceased met his death at the hands of her co-accused, Bradleigh Walsh. 2 I have rejected some evidence arising from those conversations but I have also ruled that some part of one conversation be admitted into evidence. These are the reasons for those rulings. 3 There is no dispute at the trial that Walsh killed the deceased in the flat where the accused and Walsh lived. They were in a close personal relationship at the time. The Crown case is that after Walsh killed the deceased, the accused assisted him to dispose of the body and to remove evidence of the killing from the flat. On arraignment Walsh pleaded guilty to manslaughter on the basis of excessive self-defence, but the Crown rejected that plea as discharging the indictment for murder. The alternative verdicts against the accused are on the basis that the Crown alleges she was aware of the circumstances in which the deceased was killed by Walsh and, depending upon what the jury determine as to his criminal liability for that killing, so they will find the accused guilty of one of the alternative charges. 4 Police became aware of the killing after the deceased's severed head and two arms were found in the Hawkesbury River. Police learned that the deceased had been staying with the accused and Walsh at a flat in Penrith shortly before his remains were found. They also learned of an account of the disappearance of the deceased given by the accused to her employer.

Section 281 Criminal Procedure Act 5 On 26 March 2002 investigating police spoke to the accused at her place of employment. Contrary to what she had told her employer, the accused told police that she knew nothing about the death of the deceased. She also informed them that her solicitor had advised her that she did not have to answer their questions. The police told the accused that they were intending to search the unit in Penrith and she expressed her wish to be there when they did. During the conversation the accused said to the police that she did not know how the deceased died but that he had stayed at her place "for a bit". 6 The accused accompanied police from her workplace intending to go with them to the unit at Penrith. However, there was a delay in the arrangements for the searching of the premises and the accused was taken into custody in the meantime. The police suspected her of withholding information about the death of the deceased. She was processed in accordance with Part 10A of the Crimes Act. 7 Eventually the police took the accused to the vicinity of the unit for her to be present at the search of the premises. While seated in the police vehicle waiting for the search to commence, the following conversation allegedly took place between Detective Bennett and the accused:

Accused: Okay, I just don't understand why all the guns.

Bennett: This is a dangerous situation, we're investigating a very violent murder, we're not going to take any risks and you can't tell us whether he is in there or not.

Bennett: We're about to do a search warrant here, before we get in there is there anything at all you want to tell me about before we go in. The accused, without replying put her head in her hands and commenced to cry. The conversation continued:

Bennett: Whatever is scaring you, whatever is scaring you, we can help.

Accused: No you can't, you don't know him, he's going to kill me, he's going to kill my family.

Bennett: I think I do, but I'd rather you tell me what did happen.

Accused: Brad and him had a fight and Brad hit him with a hammer.

8 Detective Bennett immediately spoke to the officer-in-charge of the investigation, Detective Hall, and said, "She knows about it." Detective Hall then had a conversation with the accused during which, according to the Crown case, she made admissions as to her knowledge of circumstances surrounding the killing. I have excluded that conversation on the basis of a failure to electronically record it in compliance with s 281 of the Criminal Procedure Act. 9 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: (a) there is available to the court: (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).

(4) In this section: investigating official means: (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 (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording. 10 In the present case the Crown conceded that the conversation between Detective Hall and the accused amounted to "official questioning". There was video-recording equipment present and no attempt was made to have the conversation recorded. 11 Detective Hall gave evidence before me, which I accepted, that at the time of the conversation he gave no thought to the fact that it was questioning that fell within the ambit of the equivalent provision then in force. In any event, at that time he had the understanding that, provided that the admission was adopted on a later electronic recording, compliance with the section would take place regardless of the reason for failing to electronically record the admission at the time it was made. Unfortunately he was mistaken in that view. There was no reasonable excuse for failing to record the conversation between him and the accused and any admissions made by her during it are inadmissible. 12 Further, I was of the opinion the accused should have been given a caution by Detective Hall before he asked her to give an account of the killing. The accused had already refused to answer questions and had been given advice to that effect by a solicitor. But in the circumstances, where the accused was visibly upset and concerned about her safety, a further caution was required in accordance with s 139 of the Evidence Act and was not given. Because of the view I took of the failure to comply with s 281, it was unnecessary to consider whether to admit the evidence in the exercise of discretion under s 138(1) of the Evidence Act. But, in any event, it would have been unfair to admit the evidence, and I would have rejected it under s 90 of that Act. 13 I accept that the officer was in a difficult position because he was in the middle of an investigation waiting to search the premises and not at a police station, where he would have had more time to reflect upon what was occurring and more control of the situation. But the policy behind s 281 is obvious and must impact upon what is to be considered as a reasonable excuse: Moussa (2001) 125 A Crim R 505. As I have already indicated, the police officer had a misconception about when the section applied and what was required in order to comply with it. It was my view that he ought to have known that the section applied and he ought to have made attempts to have the conversation recorded. His failure in that regard cannot give rise to a reasonable excuse. 14 Insofar as the conversation involving Detective Bennett is concerned, I was not satisfied that it fell within the scope of the section. Counsel for the accused argued strongly that, if the words were not interpreted broadly so that the provision applied in virtually any case where a suspect allegedly made an admission, police officers could circumvent the provision by giving evidence of an admission occurring outside formal police interviews. I did not accept that submission. 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 Part 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 takes 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. 23 In respect of the conversation between the accused and Detective Bennett, the portion of the conversation to which objection is taken must be viewed in the context of what went before it and s 281 must operate in a realistic and commonsense way. It was not inappropriate, in my opinion, for Detective Bennett to speak to the accused at the scene in order to see how she was and to attempt to alleviate her concerns when she expressed her fears. I do not believe that he intended by anything he said, to elicit an admission from her or to obtain information beneficial to their investigation of the murder. Nor should the officer have reasonably foreseen that an admission might be made as a result of what he said to the accused. 24 I acknowledge that the intention of the police officer cannot take a conversation outside the scope of the provision if otherwise it falls within the meaning of "official questioning". But in this case, I am satisfied that the intention of the officer was not to question the accused at all but rather to allay her fears. I accept his evidence that the admission made by the accused was, so far as he was concerned, unresponsive to the statement made by him that occasioned it. 25 But even if I had been wrong in the view I formed about the conversation and it did fall within the wide ambit to be given to the term "official questioning" and hence within the scope of the provision, I was persuaded that there was a reasonable excuse in the failure to record it. In the view that I held, it was unrealistic and unreasonable to expect that the police officer would, in the course of the conversation, realise that it was official questioning, that an admission might be made, and that the conversation should be recorded. It has to be accepted as a matter of common sense, that not all conversations with suspected persons will amount to "official questioning" and it is impracticable to require that police officers be in a position to record any statement made to them by a suspect howsoever it might occur. On the other-hand clearly the courts should be vigilant to ensure that admissions are not induced from suspects under the colour of "innocent" or casual conversations. But that is not the present case. 26 For these reasons I admitted the evidence of the conversation between the accused and Detective Bennett. However, I should note that, in my view, the facts of this case were at the very margin of the circumstances in which the provision would not operate to exclude the evidence.

Claim of client legal privilege 27 A further objection was made to part of Detective Hall's statement containing an admission allegedly made by the accused during the search of the unit. The uncontradicted evidence was that as Detective Hall, the accused and a number of other police entered the unit the telephone rang. The accused went to the telephone picked up the handset and began to speak. She was heard to say:

"Its too late Chris……I told them, they pressured me and I told them".

A short time later after further conversation with the person on the phone, the accused handed it to Detective Hall and told him that it was her solicitor. The solicitor informed the officer that he advised the accused not to do or say anything. The jury could find that the accused was referring to her statement to Detective Bennett of what Walsh had done. 28 As it happens the police were lawfully intercepting the calls to and from that telephone service and there is an electronic record of what was said by the accused to her solicitor. The objection to the evidence was principally on the basis that what the accused was overheard to say was the subject of client legal privilege. It was argued that what the accused said was in the course of obtaining legal advice from her solicitor and was thus privileged. It was also submitted that in the alternative the statement should be rejected under s 90. The Crown argued that any privilege in the statement had been waived. 29 I have ruled that the statement made by the accused is admissible and that I was not satisfied that I should reject it under s 90. These are the reasons for that ruling.

30 Section 118 of the Evidence Act relevantly states:

118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer,

for the dominant purpose of the lawyer……..providing legal advice to the client.

31 A "confidential communication" is defined by s 117 as follows:

confidential communication means a communication made in such circumstances that, when it was made:

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. The question arises as to whether what the accused was overheard to say to her solicitor was a "confidential communication". If it were not, there would be no prohibition on the Crown adducing the evidence. 32 The Australian Law Reform Commission in its Interim Report on Evidence (ALRC 26) at Vol 1 paragraph 879 in relation to its proposals as to legal client privilege stated:

"As at present, and consistently with the rationale, the requirement is maintained that the communication be confidential. An issue arises as to whether there should be a statutory presumption of confidentiality where it is shown that there is a client/lawyer relationship. It has not been included because there does not appear to be such a presumption recognised by the law and it is to be expected that the courts will continue to find a confidential relationship where they would at present". 33 In R v Braham and Mason [1976] VR 547 at Lush J referred to the following statement of Innes J in Re Griffin (1887) 8 LR (NSW) 132 in respect of legal professional privilege:

"It seems to me that if a statement be made in the presence of a third party there can be no privilege properly so called. The only privileged communications are those made between solicitor and client when they are alone".

"I am unable to accept, if I may say so, with respect, Innes J.'s categorical statement that the presence of a third party will always destroy privilege and that privilege can only exist when the solicitor and client are alone. It appears to me that any particular situation must be examined a good deal more subtly than that. However, the reason why his Honour made those observations was that he was examining the question whether the particular communication in that case was confidential, and the necessity that the communication for which protection is sought must be confidential is also referred to by Cross at the page to which I have referred.

In my opinion, each case must be examined to see whether the communication was one which should be classed as confidential. The fact of the presence of a third party should be examined to see whether that presence indicates that the communication was not intended to be confidential, or whether the presence of the third party was caused by some necessity or some circumstances which did not affect the primary nature of the communication as confidential; and it is with these matters in mind that I look at the situation here". 34 Braham and Mason was a case in which, while speaking to his solicitor by phone in a police station, the accused, B, admitted his guilt of the offence charged in the presence and hearing of a police inspector. At trial the co-accused, M, wished to cross-examine the police officer to adduce evidence of what B had said to the solicitor. Lush J held that B had not intended that the conversation be confidential as he was in effect merely repeating what he had already told the inspector and that privilege could not be claimed. 35 I believe that is the situation here. The accused was merely repeating to her solicitor what the police, in her belief, already knew: they had put pressure on her (by suggesting that she was in danger from Walsh) and she had told them what had happened (that Walsh had struck the deceased in the head with a hammer). The police were unaware that she was speaking to her solicitor at the time and the accused had done nothing to request that she be able to speak in private with the person on the phone. She, apparently, spoke in a manner that permitted the police to hear what she was saying and she could not have been under any misapprehension that they would overhear the conversation. 36 Because there was nothing said or done by the accused to indicate that she considered the conversation to be confidential, at common law she could not claim privilege in what she said notwithstanding that it was spoken to her solicitor in the course of seeking his advice. The ALRC appears to have intended that the same position would apply under the Act: the communication has to be confidential at the time it was made. Of course the accused found herself in the presence of the police involuntarily and that may be a factor in determining that the privilege was not lost even though the statement was made in the presence and hearing of the police. For example had the accused indicated she wished to speak to her solicitor in private, the claim would probably be upheld notwithstanding that it was made in the presence and hearing of police. 37 But on the evidence before me I do not believe that the accused intended that the conversation be confidential and the police had no reason to believe that it was. They were unaware that the accused was speaking with her solicitor. Because the statement was not made, or intended to be made, in confidence, the solicitor was, therefore, under no obligation not to disclose it. It was not a "confidential communication" within the meaning of that term in s 117 and there was no privilege in it. It was thus unnecessary for me to consider whether any privilege in the statement had been waived by the voluntary disclosure of it to the police. 38 Further, I was unpersuaded that I should reject the evidence on any discretionary basis. I do not understand why it would be unfair to the accused to admit it. There was no misconduct by the police, the statement was apparently reliable and voluntarily made, and there was no way in which the jury could misuse it or attribute more weight to it than it deserved. It had lost some of its probative value because I had excluded the conversation between the accused and Hall but the statement can be taken as being referrable to all that the accused had said to police including what she said to Detective Bennett.

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