Supreme Court of Tasmania|1998-03-31|Before: Wright J

R v McKenzie, Ronald Leslie [1998] TASSC 36 (31 March 1998)

Criminal Law - Evidence - Confessions and admissions - Records of interview - Other matters - Requirement for video taping - Admissibility of confessions and admissions if requirement not satisfied - Admission to detective prior to arrest - Subsequent video interview - Admission not adopted or confirmed by accused.

R v Arnol (1996) 6 Tas R 374, considered.

Judgment ID Number: [1999] TASSC 36

1 The accused challenges the admissibility of admissions allegedly made by him when he was intercepted by officers of the police Drug Bureau whilst he was travelling as a passenger in a Falcon utility at about 2.26pm on Friday 30 January 1998. On the voir dire, Detective Constable Heath Collidge gave evidence to the following effect:

"I approached the passenger side of the vehicle and introduced myself to MACKENZIE. I then asked MACKENZIE to step out of the vehicle which he did. I then informed MACKENZIE that I intended to search him and the vehicle.

I then said, 'Do you have anything you wish to produce?'

At this time MACKENZIE removed a quantity of plastic sachets containing white powder from his top right shirt pocket and handed them to Detective HERBERT.

At this time I cautioned MACKENZIE and asked him if he understood the caution to which he replied he did."

2 Detective Collidge also gave evidence that at about 5.25pm on the same day he went with the accused and other police officers to 17 Delwood Drive, Lutana where a bag containing white powder was found in a freezer. His evidence on the voir dire continued:

"I then said to MACKENZIE, 'Who does this belong to?'

Further questions were asked as to the identity of the powder and the identity of the person who placed it in the freezer, to all of which questions the reply was, "No comment".

3 During a subsequent video interview, these and other questions and answers were put to the accused, but he was not specifically asked if he agreed with them. He was shown the police officer's notes of the questions and answers. After part of these notes were read to him, he was asked if he wished to sign them to verify their authenticity, and he responded, "I wish to remain silent". He responded similarly to nearly every question which was asked of him during the remainder of the interview. At no stage did he agree with the police account of events or conversations at the time of his initial apprehension or his visit with them to Delwood Drive.

4 The admissibility of the confessions or admissions allegedly made at the Falcon utility and later at Delwood Drive was challenged by defence counsel, Mr McDermott, in reliance upon the Criminal Law (Detention and Interrogation) Act 1995, s8. 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.

10 Miss Mason submitted alternatively that the confessional statements attributed to the accused should be admitted under s8(2)(d). She says that there are exceptional circumstances which justify such a course. She says that there was a reasonable explanation for the absence of a video recording of the original confession because it occurred in response to limited police questioning designed to ascertain the nature and ownership of a white powder produced voluntarily by the accused when he was first apprehended. I agree with this. Although the arresting police had every reason to suspect the accused and to anticipate that he would be in possession of proscribed drugs when they apprehended him, I do not think it was unreasonable for them to make the arrest without videotaping that event. The video recording equipment described by Detective Constable Collidge as being available for recording interviews with suspected persons, was bulky and heavy and, I infer, could not readily be used in an arrest situation. Furthermore, Detective Constable Collidge said that video recording such events was not part of standard police procedure and, again, I infer, police are not issued with mobile video cameras which could be used in such circumstances. It was suggested by Mr McDermott that with these limitations upon police training and equipment, the arresting officer should not have asked the accused the questions which he did when stopping the accused and searching him as described in the evidence. I reject this as a legitimate criticism, and say that in my opinion it was not only reasonable but, indeed, highly appropriate that Constable Collidge should have asked those questions which he alleges he did at that time. I therefore accept Miss Mason's submission that there was a reasonable explanation why a videotape was not made on that occasion.

11 I also accept that by putting to the accused the confessional statements which were allegedly made on that occasion during the subsequent video interview, Constable Collidge was acting prudently, reasonably and fairly. The accused had an opportunity to contest the alleged confessions and did not do so, although it is fair to say there was some ambiguity in the way the allegations were put to him. He was, of course, perfectly entitled to exercise his right to silence and answer the constable in the way that he did, and his doing so cannot found an adverse inference again him, but the fact remains that he did not repudiate Constable Collidge's notes or the version of the conversations, both at the time of arrest and the subsequent search of a house which Constable Collidge put to him. No evidence was given by the accused on the voir dire, but this fact is neutral, in my view.

12 For there to be exceptional circumstances justifying the admission of the contested evidence, there must be some feature which renders the circumstances out of the ordinary. It is often difficult to characterise a situation or event as extraordinary without a clear understanding as what comparable circumstances could be characterised as ordinary or "run of the mill".

13 As Zeeman J said in R v Arnol (1996) 6 Tas R 374 at 379, "... Courts should be slow to admit evidence in reliance on s8(2)(d)". (Unfortunately what follows in that paragraph contains at least two typographical errors which tend to cloud the meaning of his Honour's observations).

14 Notwithstanding these cautionary words, I think that one should be mindful of the fact that s8 deals primarily with "interview" situations. No doubt even the briefest questioning of a suspect, whether in a public place or the cloistered environment of a police interrogation room, could qualify as an "interview" within the meaning of s8(2) but this is not the sense in which lawyers, police officers or the average layman would understand that term. Indeed, it seems to me to be quite clear that the use of the word "interview" throughout s8 is such as to confirm the use of the word in its ordinarily understood sense. It is interesting to note that "interview" seems to be used in contradistinction to the words "official questioning" which appear as part of the definition of "confession or admission" used in s8(1). The words "official questioning" are not then used again in the section. The very requirement that the "interview" must be videotaped tends to confirm that it is a formal, unhurried interrogation procedure, conducted in circumstances in which electronic recording aids are likely to be available, which is the real target of s8.

15 These considerations all predispose me to admit the contested evidence, but I must remind myself that it is not an unfettered discretion which I have. It is also of little avail to reflect that the pendulum of justice may have swung back too hard and far in favour of suspected criminals in the legislation now under discussion.

16 I therefore must record that I am unable to find exceptional circumstances which would justify the admission of the contested material in the interests of justice in the present case and, accordingly, the admissions allegedly made by the accused, both at the time of arrest and at the house at Delwood Drive, will not be admitted.

Law (Detention and Interrogation) Act 1995

R v McKenzie, Ronald Leslie [1998] TASSC 36

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R v McKenzie, Ronald Leslie [1998] TASSC 36 (31 March 1998)

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