R v Schiavini

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/3045 LOWER COURT JUDICIAL OFFICER : Ford ADCJ

COUNSEL : L.M.B. Lamprati (Crown) J.S. Andrews (Appellant) SOLICITORS : C.K. Smith (Crown) Marsdens (Appellant) CATCHWORDS : Criminal law; evidence; admissions recorded in police notebook; entry signed; no tape recording of admissions; whether reasonable excuse; admissions inadmissible under s 86 of Evidence Act; requirements of s 424A of Crimes Act ACTS CITED : Crimes Act Evidence Act CASES CITED: R v Horton (unreported, NSWCCA, 2 November 1998) DECISION : Appeal allowed; conviction quashed; new trial ordered

1 SPIGELMAN CJ: I agree with Studdert J. 2 STUDDERT J: The appellant, Walter Schiavini, stood trial in the District Court before Acting Judge Ford and jury on an indictment that contained seven counts, six of which charged him with commission of armed robberies and the seventh of which charged him with attempted armed robbery. The appellant was convicted on six of the seven counts and was acquitted on one of the counts of armed robbery. He was subsequently sentenced to six years penal servitude with a minimum term of four years six months. 3 The appellant has appealed against his conviction. Whilst the notice of appeal filed included two grounds of appeal, the first of these was abandoned and the appellant relied only upon one ground, namely that the trial judge erred in admitting evidence in the nature of admissions made by the appellant to Det. Inspector Rees in the course of an interview on 10 November 1997. 4 All the offences charged allegedly took place in the first half of 1997 and the prosecution case was that the appellant acted with two other offenders, David Lehmann and Travis Williamson. The case was that the appellant and Lehmann were both involved in the commission of the seven offences charged in the indictment and that Williamson also participated in those offences, save for the one charged in the second count. The jury acquitted the appellant on that second count. 5 It is not necessary for present purposes to record in close detail the facts presented in respect of each of the matters charged. Broadly, the armed robberies followed a familiar pattern. On each occasion commercial premises were targeted, comprising two bottle shops, a liquor store, a mixed business store and two service stations. On each occasion at least one offender was armed with a rifle and on four of these occasions the second offender carried a knife. Each of the offenders wore balaclavas, save for the occasions of three of the robberies when the second offender wore what was variously described as a gorilla mask or a monkey mask. 6 The last of the offences charged was the attempted robbery of a bottle shop. A passer-by noted the registration number of the car in which the offenders fled from the scene. This car was a Gemini motor vehicle SPK 965 and it proved to be owned by Enzo Schiavini. In November 1997 police officers executed a search warrant of premises occupied by Lehmann and found, amongst other objects, a gorilla mask, a number of knives and ammunition. Lehmann admitted his involvement in the subject offences and nominated the appellant as one of the co-offenders. Subsequently Williamson did likewise. These men gave evidence against the appellant at his trial. A common feature of their evidence was that the car used in the robberies charged in the fifth and sixth counts was a Gemini supplied by the appellant. 7 Against this background I turn to consider the evidence, the admission of which has prompted this appeal. 8 On 10 November 1997 Det. Inspector Rees interviewed the appellant at Macquarie Fields Police Station and his evidence was relevantly as follows: "I spoke to Mr Schiavini at about 12.05. I obtained his personal particulars and then said to him 'I'm gong to speak to you concerning a number of armed robbery offences, I want you to understand that you are not obliged to say anything unless you wish as anything you do say I'm going to record in my notebook and may later be used in evidence. Do you understand that?' He said 'Okay'. I said 'Do you wish to be interviewed by electronic means? By that I mean audio and visual recording, again you don't have to unless you wish as it may be used in evidence against you. Do you understand that?' He said, 'No thanks'. I said, 'I'm going to ask you questions and I'm going to record in my notebook, do you understand that?' He said 'Yes sir'. I said 'Do you know David Lehmann?' He said 'Yes'. I said 'Do you know Travis Williamson?' He said 'Yes'. I said 'Both of these men were arrested on Friday 7/11/97 and charged with a number of robberies, do you understand that?' He said 'Yes sir'. I said 'They were both interviewed and they have nominated you as being involved, do you understand that?' He said 'Yes sir'. I said 'I'm not [sic] going to play you a tape between David Lehmann and Detective Sergeant Bullock. I want you to understand that you don't have to say anything about the contents of the interview unless you wish as anything you do say will be recorded and may be later used in evidence. Do you understand that? He said 'Yes'. I said 'I will now play the tape. You don't have to say anything, do you understand that?' He said 'Yes'. The interview was suspended at 12.20 pm whilst the tape was played. At 12.55 pm I said to Schiavini 'Is there anything you wish to say concerning the tape? Again, you don't have to say anything unless you wish?' He said 'No not really, I don't want to listen to any more.' I said 'What can you tell me about vehicle SPK 965?' He said 'It's my brother's or my dad's or one of them.' I said 'Do you use that vehicle?' He said 'Yes I use it a lot and they and I lend it out.' I said 'Do you have any knowledge of a gorilla mask?' He said 'Yes my brother had one.' I said 'What happened to that mask?' He said 'It went missing.' I said 'Do you know where it went?' He made no reply. I said 'Can you tell me who had the Gemini on 5/6/97?' He said "I can't remember that far back.' I said 'Is there anything further you wish to say about this matter?' He said 'No sir.' I said 'Will you read this entry?' He said 'Yes.' I said 'Will you sign it?' He said "I will sign it.' I then left the room and spoke to Sergeant Gale and I returned to the interview. I introduced Sergeant Gale and then left the room. I photostatted my notebook entry and handed it to Wally Schiavini." 9 The relevant passages of the notebook were then tendered and admitted into evidence. Although the transcript records that counsel expressed no objection to that tender, the trial judge, in his later ruling as to the admission of the evidence here complained of, referred to the objection taken by counsel in reliance upon s 424A of the Crimes Act, so it is plain that appropriate objection must have been taken at the trial. It is s 424A of the Crimes Act upon which Mr Andrews has relied on this appeal. 10 The section is in these terms: "424A. Admission by suspects

(1) This section applies in relation to evidence of an admission within the meaning of this section.

(2) Evidence of an admission is not admissible unless: (a) there is available to the court a tape recording made by an investigating official of the interview in the course of which the admission was made, or (b) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made, there is available to the court a tape recording of an interview with the person who made the admission 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 (c) the prosecution establishes that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made.

(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of a tape recording as mentioned in subsection (2).

"admission" means an admission: (a) that was made by a defendant who, at the time when the admission was made, was, or ought reasonably to 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 may be dealt with summarily without the consent of the accused. "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) and whose functions include functions in respect of the prevention or investigation of offences, prescribed by the regulations for the purposes of this definition.

"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. (5) This section does not apply to an admission made before the commencement of this section." 11 In R v Horton (unreported, NSWCCA, 2 November 1998) it was determined that "admission" has the same meaning in this section as in the Evidence Act. On the evidence elicited through Det. Inspector Rees what the appellant told that police officer concerning the Gemini motor vehicle and the gorilla mask could plainly be viewed as admissions. 12 There was no tape recording in this case which recorded the admissions about which the police officer gave evidence. The trial judge asked these questions of Det. Inspector Rees as to the equipment available at the relevant police station: "Q. Did you have a mechanism for making an audio recording of the conversation you had with the accused?

A. Only the machine that's used for the video recording your Honour. To be completely honest with you, I didn't make - there may have been hand held tape recorders or something at Macquarie Fields Police Station, I didn't make enquiries about that because the accused indicated to me that he didn't wish to be interviewed by electronic means. Q. When you said to him 'Do you wish to be interviewed by electronic means?', you referred to a visual and an audio recording, is that right? A. Yes your Honour. Q. You didn't offer him the audio recording separately? A. No, no your Honour, I did not do that." 13 It is clear from his Honour's reasons for admitting the evidence of Det. Inspector Rees that the trial judge considered he would have been obliged to exclude the evidence of admissions save for the provisions of s 86 of the Evidence Act. So much appears from the following passage in his judgment: "The offer of an electronic interview was made as to both an audio and a visual recording and as I understand the submission of Mr Pontello, there was no offer of an audio recording as distinct from a visual recording. In other words, it is said the Detective should have offered to have the interview recorded on an audio tape. That specific question was not put to the accused. Whether he would have agreed to it or not is not known so far as the evidence is presently concerned. Detective Inspector Rees said it was his view that he could not operate the audio taping section of the ERISP machine, independently of the visual recording aspect of it. But at the same time he frankly admitted that he did not make any inquiries as to the availability of separate audio equipment on which there could have been a recording. Ordinarily, I would be obliged to exclude the notebook evidence under the section mentioned, s 424A." 14 However his Honour then allowed the evidence, applying s 86 of the Evidence Act which provides: "(1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.

(2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.

(3) The acknowledgement must be made by signing, initialling or otherwise marking the document.

'document' does not include: (a) a sound recording, or a transcript of a sound recording, or (b) a recording of visual images and sounds, or a transcript of the sounds so recorded." 15 His Honour stated his reasons for admitting the evidence under s 86 of the Evidence Act: "However, in s 86 of the Evidence Act specific provision is made for the admission of a document prepared by or on behalf of an official, an investigating official to prove the contents of questions and responses made by an accused person, provided that there has been an appropriate acknowledgment that the document is a true record of the questions and responses recorded in it. In this case, the document consists of a notebook of the police officer and it has been admitted in evidence or the relevant parts of the notebook have been admitted in evidence. The section recognises the possibility of a sound recording in the fourth sub section which provides a document does not include a sound recording or a transcript of a sound recording. There is evidence as I said, that the document, the notes made by Detective Inspector Rees were signed by way of acknowledgment by the accused after having read those notes." 16 In admitting the evidence under s 86 of the Evidence Act his Honour fell into error. That section cannot be used for the introduction of evidence of admissions in circumstances where such evidence is inadmissible under s 424A of the Crimes Act. Indeed, the Crown did not seek to argue to the contrary. Section 424A introduces additional requirements which must be satisfied in respect of admissions that relate to an indictable offence (other than one that can be dealt with summarily without the consent of the accused). See Horton (supra, at 22). 17 The Crown has submitted however that the trial judge was wrong in concluding that s 424A compelled the exclusion of the evidence. It was submitted that to construe what the police officer said to the appellant, namely "Do you wish to be interviewed by electronic means, by that I mean audio and visual recording" as meaning only a combined audio and visual recording, was artificial and that the response could reasonably have been taken to amount to a refusal to be interviewed by either means. Having regard to the object intended to be served by s 424A, prudence requires that any interviewing officer explain to a person being interviewed in relation to an indictable offence the alternative forms of "tape recording" available. It is conceivable that a person being interviewed may be prepared to be interviewed by way of audio recording but not by way of video recording. However even assuming the correctness of the Crown submission it would not follow that s 424A(2) was satisfied in the circumstances of this case. 18 Detective Constable Olsson, who had been present on 10 November 1997 when Det. Inspector Rees conducted his interview with the appellant, carried out a further interview with the appellant on 1 June 1998. On this occasion the interview was recorded by means of an ERISP machine, although the video apparently malfunctioned, and what was recorded was on the audio tape which was admitted into evidence without objection. In the course of this later interview the appellant was not asked about what had been said on 10 November 1997 and he was not asked to admit that he had said what was attributed to him on that earlier occasion. 19 The Crown has submitted that the later ERISP ought to be regarded as being directed only at one of the offences, being the offence charged in the second count in the indictment, and that what was reasonable for the purposes of admissibility had to be assessed in the particular circumstances of the case. It was argued that it was not reasonable to expect the police officer conducting the later interview to traverse the subject matter of the earlier interview again, and that the facts established reasonable excuse for the absence of a relevant tape recording. It was material, it was submitted, that the relevant entries in the inspector's notebook had been signed; that there was no suggestion at the trial that the evidence that the admissions had been made was false or that the admissions had not been freely made; and that the provisions of s 86 of the Evidence Act had been satisfied in relation to the tender. 20 Nevertheless effect must be given to the language of the section. The purpose of the section was identified in the judgment of Wood CJ at CL in Horton at 21-22 where his Honour also conveniently recorded an extract from the Attorney General's Second Reading Speech concerning the relevant Bill: "The mischief to which s 424A 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. 2. 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 (47 SR 284 at 289) 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 Pt 3.4 of the Evidence Act, which is concerned with 'admissions' in the extended sense defined in the Dictionary to that Act." 21 The strict requirements of s 424A(2) reflect the legislative purpose as recognised in Horton. The sub-section requires that there be a tape recording which satisfies either sub-s (2)(a) or (2)(b). Otherwise evidence of an admission is not admissible unless the prosecution establishes "that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made". The use of the word "could" introduces a concept of impracticability in order to excuse the lack of a tape recording. 22 If it be accepted that there was a reasonable excuse for the lack of a tape recording in respect of the 1997 admissions because of the appellant's response at that time, the appellant did nevertheless submit to a recorded interview in 1998, and the evidence is not capable of supporting a finding that it was not possible at that time to make a recording of the type contemplated in s 424A(2)(b). The later interviewing officer had been present at the earlier interview so he had knowledge as to what had then occurred. His evidence was that he was the officer in charge of the appellant's case and he had also participated in the interviews about three of the six offences charged against the appellant. I refer to the evidence of this officer in cross-examination: "Q. Also, Senior Constable, when you've spoken to the accused about the robbery at the Brown Jug Inn, you had information didn't you, that David Lehmann was prepared to give evidence against Mr Schiavini in relation to all the robberies with which he's been charged? A. That's correct. Q. Is it fair to say you had an opportunity to ask him about all those other robberies during the video taped record of interview? A. I had already spoken to him about three prior ones and Inspector Rees had already spoken to him about the other three so that's a total of six. I only interviewed him about that one." 23 The transcript of the electronic record of interview (and no point was taken that it did not accurately record what was said) shows that the appellant was first asked about the offence charged in the second count in the indictment, but the questioning ranged further afield and, for instance, at question 76 and following the appellant was asked whether he had ever borrowed a Gemini sedan from a relative. Access to this vehicle was, of course, one of the very topics covered in the earlier interview. 24 In my opinion, having regard to the evidence concerning the later electronically recorded evidence, the prosecution here failed to establish that there was a reasonable excuse as to why it was not possible for the type of recording contemplated in s 424A(2)(b) to have been made in June 1998. This being so, the strict requirements for admissibility under s 424A(2) were not satisfied and it follows that the evidence here challenged was wrongly admitted. 25 The appellant gave no evidence at his trial. However the Crown case relied heavily upon the evidence of witnesses who admitted they were the accomplices of the appellant. The evidence wrongly admitted was significant and it follows, in my opinion, that the appeal should be allowed, the appellant's conviction should be quashed and that there should be a new trial. I propose orders accordingly. 26 ADAMS J: I also agree. **********

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