'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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