Statutes - Acts of Parliament - Operation and effect of statutes - Retrospective operation - In respect of practice and procedure - Change in the law of evidence - Whether change applies to evidence of matters occurring before the change. Criminal Law (Detention and Interrogation) Act 1995 (Tas), s8. Rodway v R [1990] HCA 19; (1990) 169 CLR 515, applied. (Aust Dig Statutes [81]).

HOBART, 18-19 February 1997(hearing), 19 February 1997(decision)

1. The accused is standing trial on an indictment whereby he is charged with one count of wounding. The crime is alleged to have been committed on or about 22 October 1995. The Crown wishes to adduce evidence of two conversations, said to have occurred on that day between the accused and Sergeant Keygan, concerning the events which give rise to the charge. The question arises whether that evidence is admissible having regard to the provisions of the Criminal Law (Detention and Interrogation) Act 1995 ("the Act"), s8.

2. The Act came into force on 2 December 1996. I have concluded that s8 is to be taken as applying to any proceedings which occur on and from that date, even though the questioning occurred at some earlier time. The section provides as follows:

"8 ( (1) In this section ( '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 17 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 17 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."

3. Section 8 applies to the trial of an accused person for a serious offence. Wounding is such an offence. Even though the relevant questioning occurred before the Act came into force, s8 applies to the trial of the accused. Both at common law and by virtue of the Acts Interpretation Act 1931, s16(1), a statute is not given retrospective operation so as to affect existing rights and obligations, unless the statute provides to the contrary. It has been said that statutes dealing with procedure form an exception to this rule, although that is not entirely accurate, as was explained by the High Court in Rodway v R [1990] HCA 19; (1990) 169 CLR 515, at 518:

"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance."

"But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial."

5. The amendment to the law of evidence effected by the Act, s8(1) does not operate retrospectively to impair any right existing at the time that the Act came into force. The Crown has no vested right to have an indictment tried in any particular way. Its right is to have it tried in accordance with the practice and procedure of the court and the rules as to the admissibility of evidence which prevail at the time of the trial.

6. I took the evidence proposed to be introduced by the Crown on the voir dire. Prior to taking that evidence, evidence was given at the trial which would enable the jury to find that at or about 2am on 22 October 1995 at the Duke of Wellington Hotel in Hobart the accused inflicted upon the complainant a substantial neck wound by striking him with a glass. The evidence on the voir dire came from Sergeant Keygan. He said that on 22 October 1995 he was attached to the Criminal Investigation Branch and that at about 6.10am, as the result of information which he had received, he attended in the vicinity of the Duke of Wellington Hotel. The following evidence followed:

"I went to the building over the road - which is the Freemasons Club and a male person, now known to me as the accused, Matthew Allen Peter Haas - I could see a male person hiding in the bushes. He stood up and said, 'I believe I am the person you are looking for.'. I said, 'Did you cut a bloke earlier with a glass?', the accused said, 'No, I punched him.'. I requested the accused - I said to the accused, 'I don't wish - I don't want you to say anything further until we get back to the office. Are you prepared to come with us?'. The accused said, 'Yes.'. Detective Beeson and I took the accused back to the Hobart CIB offices - we - WITNESS: A conversation took place, we took him straight to the interview room. On the way to the Hobart CIB offices I requested via the radio for a video operator to attend. MR SHIRLEY: Perhaps if I can stop you there, Sergeant. At that stage at 6.10am or thereabouts were you aware or not of whether a video operator was in fact working? ... There was no video operator working, your Honour. HIS HONOUR: You were aware of that? WITNESS: I was. They conclude duty at midnight, the Scientific Branch. MR SHIRLEY: I believe you said you went to an interview room? ... I did. And what happened when you got to the interview room? ... I asked the accused for his name and address, his age, date of birth, and then we had a conversation which I recorded."

7. The sergeant told me that the discussion in the interview room commenced at about 6.20am or 6.25am. He did not give direct evidence of what occurred during the course of that conversation but produced notes of it made by him. Those notes are as follows:

"Matthew Allen Peter HAAS 1 Emily Court Mulgrave Victoria 18.5.75 K Before we say anything I must caution you & tell you, you do not have to say anything about the matter unless you wish to but whatever you do say will be recorded & may be given in evidence. K Do you understand. YES. K What happened tonight. I was standing at the corner of the bar at the band side & I was observing a scuffle between my friend & another person, that was over, the other persons friend who was in the scuffle, he pointed me out, his mate said here's one of the blokes, he approached me, he pushed me I pushed him back. I had a pot in me hand I swung a punch & hit him in the chin or his cheek it would be his left cheek, then I got thrown out, the bouncer threw me out. K What happened next. I just walked as all the boys were out the front & we all went to the Cadillac bar or tavern whatever it is. K What happened then. We left about 5 o'clock & I walked around for a while, I knew I was in the shit & I didn't know where to go. I don't want you to say anymore as I intend to interview you on video. OK that's allright (sic) do we go now. K No we have to wait for the video operator to get here. Look how is he how much did I cut him. Beeson down the side of his throat. Oh shit. Beeson he is alive & will live. Oh shit. read out to HAAS. K Do you wish to sign these notes you don't have to. if you like except for a little bit in there. K Well tell me about that when we get on video OK. K are these notes true & correct then. YES K Do you want to sign them as being true & correct YES."

8. Sergeant Keygan said that some ten or fifteen minutes after concluding this conversation he became aware that a video operator had arrived. At about 7am he and Detective Beeson commenced a further interview of the accused. That interview was recorded on videotape. During the course of it the notes of the earlier interview were produced and reference was made to them.

9. Clearly each of the conversations between the accused and police officers occurred in the course of "official questioning", as defined by the Act, s8(1). I am satisfied that on the occasion of each conversation the accused was suspected by Sergeant Keygan of having committed the crime of wounding. As to the first conversation, the evidence is not entirely clear because the sergeant was not asked to indicate the nature of the information which he had received. Nevertheless, I infer that it was information that if he went to the area he might locate the person who had wounded the complainant. That, taken together with the evidence that the accused was then hiding in the bushes and that the sergeant immediately asked him whether he "cut a bloke earlier with a glass", leads me to find that, at the time he asked the first question of the accused, Sergeant Keygan suspected him of having wounded the complainant. Having then obtained an admission of punching, it cannot be doubted that thereafter the sergeant continued to entertain that suspicion. During the course of each conversation, the accused made admissions. The findings which I have made require the conclusion that each admission is an admission within the meaning of the Act, s8(1). Those admissions are not admissible unless they satisfy one or other of the requirements of s8(2).

10. No videotape was made of the conversations, so that s8(2)(a) does not enable evidence of confessions or admissions made in the course of them to be admitted. The Crown relied on s8(2)(b) for its submission that the relevant admissions are admissible in evidence. Different considerations apply to the two conversations. I deal with each separately.

11. I am satisfied that there was a reasonable explanation, within the terms of s8(3)(a), why a videotape could not be made of the admission made by the accused when first found by Sergeant Keygan. It was reasonable for Sergeant Keygan to make a preliminary inquiry of the person found by him in the terms in which he made it, without first taking him to a place where his questioning might be recorded on videotape. It was not practicable to videotape the conversation at the place where it occurred. However, before that conclusion has the result that the admission is made admissible by s8(2)(b), there must be available to the Court a videotape of an interview with the accused about the making and terms of the admission or its substance in the course of which the accused stated that he made an admission in those terms or confirmed the substance of the admission.

12. A videotape of the recorded interview of the accused was tendered on the voir dire. In the course of that interview the accused made no statement whereby he expressly confirmed that he had made the initial admission of punching. However by inference he did provide such confirmation when he accepted the accuracy of the notes, subject to specific but, for present purposes, irrelevant exceptions. In any event, the accused confirmed the substance of that admission because, without any reference to what he might have said when first spoken to by Sergeant Keygan, he stated during the course of the video-recorded interview that he had punched another man. It follows that the initial admission is admissible by virtue of the Act, s8(2)(b).

13. I now turn to the later admissions which were made during the course of questioning at the police station before the commencement of the video-recorded interview. I make the preliminary observation that s8 appears to give statutory effect to a policy that confessions should be admitted only if they are proved by reliable evidence. That policy pays heed to the warnings given by the High Court in McKinney v R (1990 - [1991] HCA 6; 1991) 171 CLR 468. It accords with the views which I had occasion to express in R v Stewart (1993) 2 Tas R 274.

14. The Crown relies on two matters as constituting a reasonable explanation as to why a videotape of the initial interview at the police station could not be made: the initial non-availability of a video operator and the apparent desire of the accused, according to Sergeant Keygan, "to get things off his chest". When Sergeant Keygan was asked why he formed the view that the accused wanted to get things off his chest, he seemed to be in some difficulty in providing an answer. Eventually he said that he formed this view because when he asked the accused what had happened that night "he just let it all come out". In other words, there is no suggestion that the accused manifested any such desire until after the questioning had commenced. It follows that such manifestation provided no reason for questioning to commence at all before video-recording could commence.

15. The non-availability of video-recording facilities immediately after the accused arrived at the police station requires consideration of s8(3)(a) and (b). Section 8(3)(a) should not be construed as being satisfied whenever a confession or admission is made at a time when videotaping facilities are not available. In particular, it is not satisfied when a police officer commences to question a suspect without waiting for the availability of a video-recording facility when such a facility will shortly be available. The practicability is to be judged not only by reference to whether the facility was available at the time the confession or admission was made but also, where the confession or admission is made as the result of police questioning, by reference to whether it was practicable to delay that questioning until the facility became available. There was no reason why Sergeant Keygan could not have delayed his questioning until the video operator arrived. There is no evidence as to when he arrived, but he had arrived by 7am when the video-recorded interview commenced.

16. Section 8(3)(b) requires reference to the Act, s4(2)(a) which provides that a person who has been taken into a custody may be detained for a reasonable time by a police officer for the purposes of inter alia questioning that person. That reasonable time is to be taken as including a short period required for the purpose of arranging for video-recording facilities. Generally speaking, it is reasonable to detain an accused person for the purposes of s8(3)(b) for so long as detention is authorised by s4(2)(a). There will be exceptional cases where that would not be reasonable, such as where the accused person requires urgent medical attention. It is only if it is not possible to obtain equipment to videotape the interview within the period for which it is reasonable to the detain the accused person that s8(3)(b) will operate so as to provide a reasonable explanation for the purposes of s8(2)(b). It follows that s8(2)(b) does not make admissible the admissions made by the accused at the police station before video-recording commenced because it continued to be reasonable to detain the accused throughout the recorded interview.

17. Section 8(2)(c) provides a separate basis for the reception of admissions and confessions. It cannot avail the Crown because of the conclusion I have reached that there is no reasonable explanation why the videotape referred to in s8(2)(a) could not be made. As to s8(2)(d), it only operates where there are exceptional circumstances. None were suggested to me. Clearly there is nothing out of the ordinary in this case. It follows that evidence of the admissions allegedly made at the police station before video-recording commenced will not be received. Arguably, not everything said by the accused allegedly said on that occasion answers to the description of being an admission. Statements not amounting to admissions are admissible. If the Crown wishes to adduce evidence of anything said on the basis that it does not amount to a confession or admission it may do so and, if need be, I will hear counsel further as to whether any particular statement falls within s8.