R v Sindoni [2009] VSC 269

1. The requirement of s. 464H(1)(c) is that the confirmation of a prior unrecorded conversation must be of its substance - not of every word of it - in order to render it admissible. In this context, "the substance" means "to the same effect" or "substantially the same". The words confirming a conversation will seldom be the same as those used in the conversation itself, although, of course, some of them might be. The confirmation may not be of the same or even similar length to the original conversation. However, if the two versions of the interchange between the police officers and the accused, when compared, convey substantially the same information, then, upon proof of the second conversation, the first will be admissible.
2. The admissions into evidence of unrecorded conversations if they are subsequently confirmed in a lawfully conducted and recorded interview accords with the policy of Part III, Division 1(30A) of the Act. It adequately protects an accused person from misconduct or negligence by investigators whilst not depriving the Crown of relevant and, often, important evidence of guilt. Thus, the determination of the question as to whether a confession or admission should be admitted pursuant to s. 464H(1)(c) should be approached without undue technicality. Provided the substance of the verbal admission or confession is reproduced in the subsequent recorded conversation, absent other appropriate discretionary considerations, evidence of that admission or confession should be admitted.
3. There are three passages in the conversation with Detective Sergeant Tymms which the Crown argues have been sufficiently confirmed by the accused's subsequent record of interview to comply with s. 464H(1)(c) so as to render them admissible.
4. The first passage occurred shortly after the conversation commenced, and consists of two questions and answers:

Answer: I had a fight with the bouncer and he king hit me.

1. The prosecutor argued that the accused, in his record of interview (which, it is presumed, is agreed to be admissible, having been properly conducted and recorded), sufficiently confirmed those two answers as to render the original questions and answers admissible. He referred to questions 119 and 120 of the record of interview. That short passage is in the following terms:

Answer: I couldn't tell you but if you check the video you can see him punching me in the face and I just walked off and I thought "you're fuckin' kidd'n, mate".

1. Whilst it is true that, in the first conversation, the use of the term "king hit" by the accused suggests an unexpected and perhaps unprovoked attack, whereas his answer to questions 119 and 120 refer to punching in the face, the substance of both was that a security guard had punched the accused. In his answers to questions 128, 131 and, particularly, 133, the accused confirms either that he was "kicked out" of the club, or not allowed to return after going outside for a cigarette. These answers, confirm, in substance, the accused's answer to the second of the two questions above. Accordingly, there is sufficient confirmation of the accused's verbal admission at the time of his arrest to satisfy s. 464H(1)(c) and so render the two questions and answers admissible. They will be admitted.
2. The second passage consists of one question and answer further on in the conversation between Detective Sergeant Tymms and the accused.

Answer: I went back to the club and shot the bouncer.

1. The Crown relies on the question and answer to question 70 in the record of interview as confirming that admission allegedly made to Detective Sergeant Tymms. Question 70 is as follows:

Question: Okay. I put it to you that you admitted to police in my presence this afternoon that you were involved in a shooting incident; what do you have to say about that?

The accused's answers to the questions that follow repeat the explanation that he was scared.

1. In contradistinction to the conversation about the king hit and the fight, this answer does not appear to be confirmed in the record of interview at all. It commences with a leading question from the police officer about which there is no complaint but the answer to that leading question is, at best, equivocal and certainly it could not be said that it is equivalent to saying "I went back to the club and shot the bouncer". That passage will be excluded.
2. The final passage consists of the next two questions in the conversation:

1. The Crown points to questions and answers 56 and 57 in the record of interview as being confirmatory of that conversation. That passage is as follows:

Question: Okay. I put it to you that we've asked you where, where a handgun was located?

Question: Okay. And what did you... do you remember what we told you or what you told us?

Answer: Well, I told you it was at - at - at Hope Street.

1. Here, apart from the reference to the person being a mate, the substance of the conversation is in fact repeated. That reference to "a mate", in this context, is an immaterial difference. The passage taken as a whole has been confirmed, in its material elements at least, by questions 56 and 57. Accordingly those questions and answers will likewise be admitted.
2. This ruling may require the record of interview to be edited, particularly, I think, with respect to question 70 and those immediately following it. I will leave it to counsel to discuss that and to come up with an appropriate edit. If they are unable to agree on appropriate editing, the Court will rule on the question.