33 The Crown Prosecutor opposed the adjournment on the basis that efforts had been made to locate Mr Fagan for two trial dates and had failed. In his reasons for judgment the judge found that attempts had been made over several months by the police to contact Mr Fagan. The judge stated:
"Overall I am not convinced that the absence of Fagan will unduly prejudice the accused in this trial, and I am not persuaded that the accused will be unfairly prejudiced if I refuse an adjournment. It has not been made apparent to me that the witness can be located by or on behalf of the accused, if an adjournment is granted. Indeed, there is some suggestion that the witness may well be seeking to avoid giving evidence at the trial because of his own possible implication in criminal matters not related to that which is presently before myself."
34 The judge ruled that it was in the interests of justice that the trial proceed. It was not
.
35 There are three errors in the judge's approach. Firstly he applied the wrong test when he seemed to hold that the appellant had to satisfy the court that Mr Fagan could be located by or on behalf of the appellant if the adjournment were granted. What the appellant sought was the opportunity to locate Mr Fagan. He and his advisors knew the Crown intended calling Mr Fagan and having him at Court. Neither the police nor the prosecution told the appellant or his solicitor some 7 to 14 days before the trial that Mr Fagan could not be located, that he may not be at the trial and that the Crown proposed to proceed in his absence. If the appellant or his solicitor had been alerted in ample time they could have tried to locate Mr Fagan.
36 Secondly, Mr Fagan was an important witness and the appellant wished him called as Mr Fagan could support the gravity of Smith's attacks and his threats to the appellant. It was not for the judge to restrict the way in which the appellant conducted his case or the evidence which he wished to adduce. The judge was wrong in holding that the appellant had to persuade him that the appellant would be unfairly or unduly prejudiced.
37 Thirdly, the judge exercised his discretion unreasonably. In the circumstances it was not reasonably open to the judge to refuse the adjournment.
38 During the trial the Crown and the appellant tried to locate Mr Fagan and have him attend at Court. Their efforts failed. Nobody seemed to give much thought to Mr Fagan requiring reasonable notice to attend at the hearing. With all the exigencies and pressure of a trial, an accused person, especially one who is going to give evidence, would be hard pressed to start searching for a witness during his trial.
39 After the trial Mr Fagan was located. He has stated that in 1997 and 1998 he attended Court several times expecting to give evidence. On those occasions the trial was adjourned. He stated that he was not advised by anyone of the hearing date of 27 July 1998 prior to the hearing. He said that he normally used his parents' address as a contact address. So far as he knew no contact was made with them prior to the hearing. Mr Fagan explained that he was frequently away for short periods doing contract work. He recalled that on a day of the trial he received a telephone call from either a barrister or a policeman advising that he was required in Court that day or the next day. Mr Fagan said that he told the caller that it was impossible for him to attend as he was in the middle of an epoxy floor and could not leave until the job was completed. He would have been prepared to attend and give evidence if he had been advised and given sufficient notice prior to the trial. It appears from other evidence that the caller was probably a police officer. Det Snr Constable Wilkinson thought Det Kehoe had spoken with Mr Fagan.
40 Mrs S Fagan, the ex-wife of Mr Fagan, said that Mr Fagan had irregular but frequent contact with their son. Usually he contacted her once per week, although occasionally there would be a couple of weeks between contacts. During 1997-1998 she would normally have been able to pass a message to Mr Fagan within a couple of weeks. She recalled being telephoned by the police on two occasions but could not fix the dates. She said that on the second time she was telephoned by a policeman who told her that Mr Fagan was required as a witness in Stephen Reid's trial. The date given was only a couple of days away. She was not able to contact Mr Fagan within the short time before the hearing date.
41 The refusal of the adjournment contributed to a miscarriage of justice. There must be a new trial.
Alleged Admissions to Police
42 Evidence was led of the statements made by the appellant to Det Wilkinson in the presence of Det Kehoe.
43 According to Det Kehoe the appellant, when awoken and spoken to about 9am on 10 January 1996 by Det Wilkinson said he knew nothing and was asleep when the incident occurred and repeated that statement after he had dressed to accompany the police to the police station. He also allegedly said at the flat that all he knew was that there was a fight and that Smith was in hospital. He continued: "Basically I was asleep. Nicole was here and I called the police. Paul was on the ground outside my door." Det Wilkinson asked the appellant a series of questions about George Anderson and his whereabouts. The appellant was asked a series of questions about his movements earlier in the night. He stated that he arrived home about 9.30 and went straight to bed having spent the previous four hours in a hotel, consuming four or five schooners. The appellant said, "I heard some conversation between George and Paul and I called the police … [I was] inside my unit." The appellant stated that he called the police from Chad's flat and Nicole called the ambulance. He gave his name and told the triple 0 operators there was a fight.
44 Detective Wilkinson gave evidence to the same effect. It was not put to Det Kehoe or Det Wilkinson that the conversations at the appellant's flat were incorrectly stated or did not occur. This was because the appellant said that he was not sure what was said. In answer to questions in cross-examination Det Wilkinson stated that initially when he spoke to the appellant, he was somewhat evasive and would change his mind. Later, he was much more forthright.
45 The appellant said in cross-examination that he was not sure about the terms of the conversations he had with the police at his flat. He remembered that there were conversations. He had been woken up and was still in a bit of a daze. He could not recall what was said. He had a very general and vague recollection of what occurred and what was said. He denied that he tried to give police the impression that it was Anderson who inflicted the injuries to Smith.
46 Det Wilkinson was permitted, apparently with the appellant's consent, to give the terms of a discussion between Sgt Bainbridge and the appellant at Manly Police Station about 1.24 am on 10 January 1996. The appellant allegedly said "I was in bed and I heard Paul and George arguing outside. I don't know what happened but it got pretty serious and I called the police."
47 In cross-examination the appellant stated that he probably could have said something like that. Sgt Bainbridge recorded that the appellant said he did not see anyone else involved in the argument apart from Paul and George. The appellant stated that he may have said those words. The appellant said that he did not recall Sgt Bainbridge asking what had happened.
48 Objection was not taken to the admission of the evidence of Dets Kehoe and Wilkinson as to the conversations held and admissions made at the appellant's flat nor to the admission of the conversation between Sgt Bainbridge and the appellant. Counsel for the appellant at the trial has stated that she overlooked s424A of the Crimes Act 1900 and that there was no tactical treason for not objecting to this evidence.
49 The evidence led by the Crown as to these conversations with the appellant undermined his credibility and made it appear that he had told lies. The appellant was cross-examined effectively by the Crown on what he had said to Dets Wilkinson and Kehoe and to Sgt Bainbridge. The judge in summing-up referred to these matters at some length and in a very pointed fashion.
50 In the ERISP held on the afternoon of 10 January 1006 the appellant agreed that the questioner, Det Wilkinson, had first spoken to him at 14 Smith Street, Manly, but the appellant added that his recollection was vague, that he had just got out of bed and that there were so many faces, "about 7 police officers". The appellant agreed that Det Wilkinson said at the time of the home visit that he was there to investigate a serious assault on Paul Smith. The ERISP lasted from 2.06 pm to 3.47 pm and extends over 66 pages. The appellant was closely and competently questioned as to the events at 14 Smith Street, Manly, the part he played, the background and the various residents and persons involved.
51 At no stage was the appellant reminded of what he had said at the flat to the detectives or to Sgt Bainbridge and asked to confirm, deny, qualify or comment upon what he had allegedly said. There were indications that he was likely to say that he had only a vague recollection. He may not have remembered what he allegedly said earlier in the day.
52 Leave was sought to argue Appeal Ground 4A which read:
"His Honour erred in not excluding under s424A of the Crimes Act 1900 evidence of admissions made to Detectives Wilkinson and Kehoe at the appellant's flat and to Sergeant Bainbridge at Manly Police Station on 10 January 1996."
53 Section 424A relevantly reads:
"(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 investigation 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).
(4) In this section:
"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."
54 This section and its history was reviewed comprehensively by Wood CJ at CL in R v Horton, CCA, unreported 2 November 1998. Sully and Ireland JJ concurred. I have drawn extensively from the Chief Judge's review.
55 Section 424A was introduced into the Crimes Act 1900 by the Evidence (Consequential and Other Provisions) Act 1995, an ancillary Act to the Evidence Act 1995 which contained a number of provisions governing the proof or reception of admissions. The former section 410 of the Crimes Act was omitted.
56 In the Second Reading Speech (Hansard, Legislative Council 24 May 1995) it was said of the Evidence (Consequential and Other Provisions) Bill that by amendment to the Crimes Act 1900 the tape recording of admissions to police was made compulsory where an accused person is suspected of an indictable offence that may not be tried summarily without the defendant's consent. Reference was made to the four objectives for adopting an electronic recording system in the 1986 report of the Criminal Law Review Division -
1. To provide the Courts with a reliable account of statements made by persons accused of crime, while 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 the police.
The Minister continued:
"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 that system."
57 At 22 Wood CJ at CL said
"It was, in my view, directed to the very mischief that Jordan CJ identified in Jeffries , 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 Part 3.4 of the Evidence Act, which is concerned with 'admissions' in the extended sense defined in the Dictionary to that Act."
58 Relevantly, that Dictionary provides that "admission" means a previous representation made by a defendant adverse to that person's interest in the outcome of the proceeding. In Horton at 15, Wood CJ at CL relied on a compelling line of Victorian authority characterising untrue exculpatory statements relied upon as evidencing a consciousness of guilt as being implied admissions. I respectfully agree.
59 The untrue statements made by the appellant to the detectives at his flat and to Sgt Bainbridge and relied upon as evincing a consciousness of guilt were admissions within s424A of the Crimes Act. The other qualifying conditions in s424A(4) have been satisfied.
60 Before this Court the debate was confined. The appellant submitted that s424A was "self executing" and that no objection to the admissibility of the material here in question need be taken by him. He contended that the Crown had an obligation in each case to demonstrate that the requirements of s424A had been met and that the material should be admitted. As the Crown had not done so the material should have been rejected. The Statute provides that evidence of an admission is not admissible unless the pre-conditions are met.
61 However, s424A was enacted against the long standing and well known practice of the Court generally not to reject evidence led by a party until a legitimate objection is taken by the other party. On occasions the Court of its own motion may intervene if a witness is being led in such a way that the evidence will be of little value, or if the evidence is scandalous or unfair or if it is being led for an ulterior motive or is irrelevant, or unnecessary or unduly prolix. The list is not exhaustive and these examples and the Court's intervention, absent an objection by a party tend to be the exception and not the rule. The reason for the Court's usual approach is that the judge does not have the same knowledge of the issues as counsel nor what evidence is in dispute. Generally, the parties are left to select the way in which they (or each) wishes to conduct their cases (or his or her case). They should know what is important. Sometimes a party is prepared to admit material to save time or to reduce expense, or avoid even more damaging evidence or to capitalise on it in cross-examination or in the conduct of the defence by using it, if possible, to destroy the prosecution case. Further, an accused may know that there is a reasonable excuse why a tape recording could not be made.
62 Generally, and subject to all just exceptions, where the Crown desires to lead evidence of admissions within s424A of the Crimes Act which are not the subject of a tape recording it should enquire via the judge whether there is any objection. If not, the evidence of the admissions should be led by the Crown. If objection is taken evidence will have to be led by the Crown to establish that a tape recording or recordings, as the case may be, could not be made. The legal representatives of the accused have the responsibility of objecting to the evidence in a timely fashion. If the accused is unrepresented the judge will need to explain the point. In many instances the safe course with unrepresented accused will be to require the Crown to lead the evidence which would make the admissions admissible.
63 It was submitted by the Crown that s424A was designed to deal with cases where there is a dispute as to what was said and done. However, it has the deeper and more fundamental purpose of endeavouring to ensure the integrity of the evidence of police officers as to admissions. The method adopted is to make the recordings of admissions to police compulsory. To avoid the requirement of taped recordings the Crown must prove that there was a reasonable excuse why a tape recording could not be made. If a tape recording could reasonably have been made and was not, it will not assist the Crown that some truly independent person heard what was said as between the police and the accused.
64 Under s424A(4)
"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 questioned,"
Under s424A(4)
"A tape recording includes audio recording or video recording or a video recording accompanied by a separately but contemporaneously recorded audio recording."
65 Police officers attending a crime scene frequently ask those present what happened and the responses of those present often determine the future course of police investigations. An accused may make important admissions at the scene in such circumstances. The police officers may not have a pocket audio tape recorder with them. I refrain from making any general comment as to whether a judge should find a "reasonable excuse" as much will depend upon the circumstances.
66 The strongly preferable course is that, in cases of serious crime, interviews with questions asked and answers given at crime scenes be recorded by an audio tape reorder, albeit that it is a pocket one and only one recording can be made. I am assuming, based on experience, that the police and the prosecution will seek to rely on any admissions.
67 It is important that, if no adequate recording is made at the scene, the admissions alleged to have been made there and intended to be adduced in evidence are put to the accused in a fully recorded interview as early as possible for his acceptance or denial. Failure to do so would be critical unless, of course, the accused declined to participate in such an interview.
68 If the investigating police officers do not have an audio tape recorder at the scene they should, apart from essential questions, directly affecting the ongoing investigation, conduct their interviews with an accused where tape recording equipment is available if evidence of the admissions is intended to be led.
69 Attempts to circumvent s24A will not be tolerated. The stratagems so far used have included interviews at the scene or in a police car or at a police station and of the recorded in a police notebook, whether signed or unsigned. These occur before any ERISP and sometimes in substitution for an ERISP.
70 Because of the importance of s424A of the Crimes Act 1900 and its correct construction leave to raise the point should be granted and it was apt for this Court to indicate how s424A should be approached and construed. Because there has to be a new trial on the basis of the refusal of the adjournment and this point would not alter the outcome of the appeal it is unnecessary to take the matter further.
71 The appellant submitted that the appropriate order would be to direct a verdict of acquittal rather than order a new trial. I do not agree. The evidence in support of the Crown case was cogent, especially that of Ms Hess. If her account is correct there was considerable criminality on the part of the appellant and his attack upon the victim far exceeded what was reasonably necessary by way of self-defence. The appellant who has served seven months 19 days in custody has relied on this and some subjective features. These could not and do not justify or warrant a verdict of acquittal.