Grounds 3 and 4: Alleged oral admissions to Police Prosecutor and Corrective Services officer.
95 The third and fourth grounds of appeal may conveniently be dealt with together.
96 The third ground of appeal is in the following terms:
"The learned trial judge erred in admitting the evidence of admissions said to have been made by the appellant to
(a) Senior Constable Barron
(b) Corrective Services Officer Bouffler"
97 Ground four is in the following terms:
"The learned trial judge erred in his directions to the jury on the approach they should take to the assessment and evaluation of admissions already made by the appellant to
(a) Senior Constable Barron
(b) Corrective Services Officer Bouffler
at times when the appellant was effectively in the custody of those officers."
98 We have already referred to the evidence of admissions allegedly made by the appellant to Barron and Bouffler.
99 His Honour ruled on 27 March 2000, during the course of the earlier trial, that admissions to the prosecutor, Senior Constable Barron, made by the appellant whilst on the way to the court room and in the court room were admissible as they were not "in the course of official questioning" (as required by s 108 (now s 281) Criminal Procedure Act 1986) and were volunteered by the appellant rather than as a result of questions put to him. His Honour had earlier ruled (on 22 March 2000) that there was no impropriety on the part of Barron in the recording of the conversations or in not inviting the appellant to give some formal acknowledgement of their accuracy.
100 Section 281 is in the following terms:
" 281 (1) This section applies to an admission:
(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably 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 related to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.
(2) Evidence of an admission to which this section applies is not admissible unless
(a) there is available to the court:
(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview 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
(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.
(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).
(4) In this section:
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) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.
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."
101 As stated earlier, his Honour's judgment concerning the evidence of Senior Constable Barron in light of [s 281] of the Criminal Procedure Act was delivered on 27 March 2000. His Honour accepted that the appellant's statement to Barron as set out above constituted "admissions", and that the requirements of pars (a) and (c) of subsection (1) had been satisfied. However, as we have indicated, his Honour concluded that the admissions had not been "made in the course of official questioning" as required in par (b) of the subsection.
102 As to the first admission made to Barron while walking with the appellant to the courthouse, his Honour noted that there was no questioning of the appellant by Barron and that the appellant's words were not said in response to anything said by Barron. The comment of the appellant appeared simply to have been a statement volunteered by the appellant.
103 The second conversation in the court room was, his Honour found, initiated by the appellant. The relevant admission was not made in response to any question asked by Barron, and his Honour found that nothing Barron said had been calculated to bring forth any information, let alone the comment made by the appellant. His Honour concluded, therefore, that neither of the admissions allegedly made by the appellant had occurred during the course of official questioning, and that therefore [s 281] did not apply.
104 A similar conclusion was reached by his Honour in the judgment of 11 April 2000 as to the admissions allegedly made to Corrections Officer Bouffler. At the outset of the judgment, his Honour made reference to the earlier judgment relating to admissions made to Senior Constable Barron. Counsel for the appellant suggests that his Honour appears to have done so to indicate that similar considerations applied to the admissibility of the statement made to Bouffler, as had been held to apply to those made to Barron. However, we do not consider that his Honour intended to suggest that s 281 applied to Bouffler, who was not a police officer. Probably, his Honour meant to indicate that there was no impropriety on the part of Bouffler.
105 Section 424A of the Crimes Act (which was the precursor of and in identical terms to s 281) was considered by this Court in Horton (1998-1999) 104 A Crim R 306. In that case, s 424A was held to be applicable to the situation where the appellant was informed at the scene that she was under arrest for murder after she volunteered the relevant admission in response to a question by an investigating police officer. In the absence of proof of the existence of a reasonable excuse for the absence of either of the tape recordings contemplated by s 424A, the evidence was not admissible to show that the appellant had made the admission alleged. Horton was applied by this Court in Moffatt (2000) 112 A Crim R 201 at 207-208.
106 In Moffat the admissions were volunteered by the appellant while he was in the dock at the police station, subsequent to having been charged and cautioned by a police officer. The admissions were noted at the time but the appellant was never given the opportunity to adopt them. The Court noted (at 208) that absent proof of a reasonable excuse for the absence of either of the forms of tape recording contemplated by the section, "the evidence was not admissible to show that the appellant had made the admissions described". Although the Court did not specifically refer to the question, it must be assumed that the Court was satisfied that the admissions were made in the course of official questioning because the appellant had been informed that he was under arrest for murder and cautioned before he volunteered the admissions.
107 In Marlow & Kelly (2001-2002) 129 A Crim R 51 (a judgment of the Court of Criminal Appeal, Tasmania) Slicer J held (in a dissenting judgment) at [143], [150] and [153] that the words "in the course of official questioning" should be given the widest possible meaning to ensure accused persons are protected from what are colloquially referred to as "verbals" as the legislation was introduced for this specific purpose and in consequence of the decision of the High Court in McKinney, to which reference has already been made.
108 In Marlow & Kelly, the relevant admission was volunteered shortly after the conclusion of a formal video-taped interview. The majority (Underwood and Evans JJ) held, however, that the volunteered statements by the appellant Kelly at that stage did not amount to a confession or admission made "in the course of official questioning" within the meaning of s 8 of the Criminal Law (Detention and Interrogation) Act.
109 At pp 75-76 Underwood J (with the concurrence of Evans J) said:
"However, with respect to the admissibility of the evidence, the task of the learned trial judge was, and the task of this Court is, to ascertain the intention of parliament as enacted by the provisions of the Criminal Law (Detention and Interrogation) Act , s 8(1). It is quite clear that parliament did not intend to provide that no admission or confession would be admissible unless its making is recorded on video tape. Had parliament intended this, then it would have said so. Further, it is clear that parliament did not intend that volunteered admissions should fall within the scope of s 8: see Julin [2000] TASSC 50. The provisions of s 8(1) make it perfectly clear that parliament only intended to inhibit the admission of confessions that were made in the course of questioning by a police officer in connection with the investigation of the commission, or possible commission, of an offence. The plain fact in this case is that the impugned admission was volunteered by the appellant Kelly and was not made in the course of any questioning at all. The questioning had clearly come to an end at the time the appellant Kelly left the video interview room and set off for the charge room. The evidence was that no other question was asked of him by Detective Lopes or Detective Pretyman thereafter. It would be straining the language of the legislature to hold that, by reason of the matters advanced by Mr Proctor, the course of official questioning was still in progress when the impugned admission was made. I detect no error in the ruling of the learned trial judge in this respect."
110 Questions of fact and degree necessarily arise when considering whether an admission has been volunteered other than in the course of official questioning. Moffatt may be taken to be, perhaps, an extreme situation.
111 Whatever the true construction of the phrase "in the course of official questioning", it could not extend to the present situation, which was subsequent to the formal declaration by the appellant of his election to remain silent and the consequential termination of any questioning.
112 Thus, the argument by the appellant based upon s 281 must be rejected.
113 It is convenient at this stage to note that his Honour gave a direction to the jury regarding the admissions the subject of these two grounds of appeal, immediately following the directions which he had given to the jury in relation to prison informers and accomplices. Specifically, his Honour said:
"Now, there is evidence of admissions which is given by witnesses who are not prison informers, namely, Senior Constable Barron and Mr Bouffler. Police and Correctional Service Officers do not fall into a special category of witnesses who, by their very nature, may be unreliable, so I do not give you any special warning about the treatment of their evidence. However, the evidence of Mr Barron and Mr Bouffler still has to be approached by you with caution for the reasons I have given you about admissions generally, that they are very easy to fabricate, virtually impossible to test and difficult to refute." (S/U 28)
114 At a later stage of the summing-up his Honour summarised the evidence of Barron and the relevant submissions by defence counsel to the effect that the jury would reject his evidence, and then said:
"That is the evidence of Mr Barron. The question for you is: Were the words said? If they were said, do they bear the meaning contended for by the Crown, that these words were said in full recognition that he, the accused, had done the act about which they were concerned." (S/U 48)
115 His Honour then turned to the evidence of Bouffler, and said:
"Mr Bouffler, who remembered nothing about that conversation, did give evidence of two other conversations, however, on the same day. He was part of the escort. On the way to the Court he has the accused saying 'I'm taking the rap. I didn't do this but I'm taking the rap for it' and on the way back, apparently after having left the police cells and about to be transported back to the place where he was kept in the prison, he said, 'When do I receive my medal?' Again, the Crown would contend for, first, a conclusion that the words were said. Secondly, that whatever he meant when he said he did not do it, he was taking the rap for it, there was no doubt about what he meant when he was asking when he would receive his medal.
[Defence counsel] does not submit to you that the accused did not say those words, 'I didn't do it. I'm taking the rap for it'. He asks you to doubt whether the accused said the other words, 'When do I receive my medal?' He points out to you that Mr Bouffler's statement was not made until March 2000 and that he is recounting events eighteen months later and you have to be cautious about relying on the memory of somebody who at first begins to think about something in detail eighteen months after it happened, if it happened.
They are the arguments, I think, about those two conversations." (S/U 48-49)
116 It is now necessary to deal with the submission that his Honour erred in the exercise of his discretion to admit the evidence of the alleged admissions. It is convenient to deal first with s 90 of the Evidence Act which is in the following terms:
"In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."
117 In order to determine whether there is any substance in the submission on behalf of the appellant that it was unfair to the appellant to use the evidence of Bouffler and Barron in relation to the alleged admissions, it is necessary to consider closely certain of the evidence which was given by the relevant witnesses in this regard.
118 Bouffler was the first of the relevant witnesses called. It will be recalled that he gave evidence that during the journey to Wagga Wagga the appellant said to him "I didn't do it but I'm taking the rap for it", and the witness replied, "That's pretty stupid", and later, when escorting the appellant from the cells to the motor vehicle for the trip back to the Correctional Centre the appellant said "When do I receive my medal?". This was said just prior to the appellant leaving the cells.
119 Insofar as Bouffler's evidence is concerned, the alleged statements by the appellant might be considered to clearly be exculpatory in the sense that the appellant was intending to convey to Bouffler that he considered himself entitled to a medal for taking the rap.
120 However, the alleged admissions made to Barron completely change the significance to be attached to the appellant's assertion that he was entitled to a medal. This is simply because, according to Barron, the appellant asserted that he was entitled to a medal because he "knocked" the deceased.
121 It is convenient now to look at certain cross-examination of Bouffler, which established that whilst the appellant was being escorted to the courthouse from the police cells, his hands were handcuffed in front of him and Bouffler was beside him holding on to the handcuffs. Officers Uebel and Hindmarsh were reasonably close. Hindmarsh was in front of the appellant and Bouffler. Uebel was behind them and he was armed.
122 Bouffler deposed that "a police officer" was with them (this was obviously Barron) but Bouffler heard no conversation between the police officer and the appellant, despite their physical proximity.
123 Barron was called two days after Bouffler gave evidence. The following passages from his examination in chief are important:
"Q. It's the position that in all police stations there's an officer in charge of prisoners who might be in custody?
A. Yes, in the cell complex.
Q. Did you speak to him?
A. Yes, I did.
Q. After speaking to him did you do something?
A. Yes, I had a further - Sergeant Macrae had a short conversation with the defendant. I was present during that and than the three correctional officers and myself escorted the defendant to the courthouse, which is adjacent to the police station. There's an alleyway running between the two so we walked through the doorway from the police station towards the courthouse. There's an alleyway running between the two with a roller door that can come down to block the view from that alley - from the street, from the public.
As we walked through the alleyway I said to the defendant, 'That'll be down on Monday' - indicating the roller door. He said, 'What, for the cameras?' I said, 'Yeah, I'll make sure it's down on Monday for you'. He said, 'Do I get my medal then? That's what I should get, that I knocked him'. I didn't say anything in reply to that. We were still walking through and continuing going through to the courthouse.
We came up through the tunnel into the courtroom, which is similar to this, and I put my papers on the bar table and came up to the Bench. I had forgotten to take a pen with me to Court that day so I went up to the Bench to find a scrap of paper and actually found a pen on the bench. It was this one (produced). It was a green pen. I took the pen and wrote down immediately the words that he had said to me on the way through on a piece of paper that I had found on the Bench.
Q. I hand you these two documents (shown). You say you made some sort of written record, is that right?
A. Yes.
Q. Which one are you looking at now?
A. I'm looking at a white piece of paper.
Q. Don't worry about what's on the back at this stage?
A. With the green writing that I recorded when I returned to Court.
Q. I take it that that writing, in effect, records exactly what you have told the Court about now?
A. This records the words that the defendant said to me, 'do I get my medal then? That's what I should get, that I knocked him'.
MFI #17 WHITE PIECE OF PAPER IDENTIFIED BY SENIOR CONSTABLE BARRON." (T360-361)
124 Barron was then asked to draw a sketch plan of the area traversed between the police station and the court, which sketch was tendered as an exhibit. Barron's examination in chief continued:
"Q. You say you made a notation on that piece of paper, MFI 17, and did you do something with that piece of paper after you had written on it?
A. Yes, the Court papers that I referred to receiving when I got to the police station, were kept in this manila folder.
Q. You're indicating a yellow manila folder in your hands now?
A. Yes, that was in there with all the other paperwork and a covering sheet on the front. I put that piece of paper in with the papers in that manila folder.
Q. I take it then that the bail hearing took place?
A. Yes, Mr Adams was the Registrar that day. He arrived shortly after I made the note and put it in the folder that the bail hearing proceeded. The defendant was unrepresented. He made no application for bail.
HIS HONOUR: Q. Just answer the question you're asked. You were only asked if the bail hearing took place?
A. It did.
CROWN PROSECUTOR: Q. I think just prior to the arrival of the gentleman Mr Adams that you referred to a moment ago, you had a further conversation with the accused?
A. Yes.
Q. I want you to just take it step by step. For a start he asked you a question?
A. Yes.
Q. What was that?
A. Initially - this is before Mr Adams arrived - he said to me, 'Are you the prosecutor?'
Q. I want you to take it step by step. I think at that stage you gave a response?
A. Yes.
Q. You said?
A. I said, 'Yeah'.
Q. Did he say something else to you at that stage. Just tell the Court what he said to you?
A. He said, 'I don't know why you're prosecuting me. You should be thanking me.'
Q. At that point of time I think you made some brief comment to him and then you also once again made a record of that second conversation that took place?
A. Yes.
Q. When did you make that second record?
A. I made it on the manila folder.
Q. Is that the same manila folder you held up before?
A. Yes, that's the case.
Q. Did you record the exact words which you just told the Court about a moment ago?
A. Yes, I did.
MFI #18 MANILLA FOLDER.
Q. I think after you had made that particular notation on the manila folder, it was at that stage that the gentleman Mr Adams arrived?
A. Yes.
Q. The bail hearing proceeded in its normal way?
A. Yeah.
Q. It, in due course, came to an end and I think at that stage the accused was then returned to his former cell?
A. Yes.
Q. And you travelled with him and the correctional officers that were with him?
A. Yes.
Q. I think at that stage when you got back into the police station you had another conversation with someone. Did you speak to somebody else at that stage?
A. Yes, I did.
Q. Who was that person?
A. Acting Sergeant Macrae.
Q. Did you, when you spoke to him, show him something?
A. Yes, I did.
Q. What did you show him?
A. I showed him the white piece of paper that I made the first notation on.
Q. As a result of that, did he tell you to do something?
A. Yes, he suggested something.
Q. And after speaking to him did you in fact do something?
A. No, I attempted - I did go to a computer and attempted to make a statement at that time but I was unable to access the macro on the computer. In my role as a police prosecutor, I don't make statements generally, so I wasn't used to it. I don't know if it was the computer or me but, for whatever reason, I couldn't access the macro to make the statement.
Q. You had trouble pulling up the template?
A. On the computer, yes.
Q. Having tried to do that and not succeeding what did you do then?
A. I thought I'll leave it till Monday, I'll do it over on my computer in the office where there'll be people who might assist me.
Q. Is that in fact what you did do?
A. Yes, that Monday, two days later, I made the statement then." (T361-363)
125 The following evidence given by Barron in cross-examination is also important.
"Q. As a police officer you are, of course, issued with official notebooks, aren't you?
A. Not at that stage. As a prosecutor I didn't have a police notebook.
Q. Did you have nothing upon which you could have officially noted something?
A. Well, no, all that I had with me were the court papers themselves.
Q. I understand that. Why is it that you wrote one note on a piece of scrap paper and one note inside the folder? Why the two different places for the writing of the note?
A. As soon as I got into the courtroom I looked for a piece of paper to write it on because I didn't want to mark the Court papers. That was why I didn't make the first note on the Court papers but then when he made the second comment, I had the folder open and the pen in my hand so I scribbled it down quickly immediately. There was a clean side on the open page of the manila folder so I just scribbled it there.
Q. Did you put any date on the piece of paper --
A. No.
Q. - that you made the note on?
A. No, but at that time all of the Court papers were still attached so the date was on those.
Q. On the piece of paper?
A. No, I didn't.
Q. Any date?
A. No, I didn't.
Q. Why not?
A. It didn't occur to me.
Q. It didn't occur to you as a trained officer. You think you have heard something of importance; you go to the trouble of writing it down, you tell this jury, but you don't even put a date on it?
A. No.
Q. That means it could have been written any time, doesn't it?
A. Well, except I know when I did it.
Q. We have only got your word for that, haven't we?
A. In the same way if you say a date was there, you could say I had written that at any time.
Q. You kept the pen for two years or more?
A. Yeah.
Q. To show this jury?
A. Yeah.
Q. But you didn't even date the paper?
A. Yeah, that's the case. I didn't specifically keep it for that purpose but when I found I had taken it home, I kept it by the phone and then I --
Q. Please finish your answer?
A. I put it by the phone at home and I (sic) was there for some time and then I put it in my jacket when I came to Court on the last occasion and I've left it there since.
Q. Just to convince someone that the green ink in the writing is the same as the green ink in the pen in your hand?
A. No, just because it was there and I thought it may be relevant, so I thought I'd bring it.
Q. Did it occur to you at any time as a trained police prosecutor to give this man the opportunity of reading to him what you say he said to you?
A. No, it didn't.
Q. You'd have to agree that is normal police procedure, is it not?
A. I'm not specifically trained in that area so I'm not certain if that is a part of that training or not but it's not a part of my training. I'm trained as a prosecutor.
Q. For example, if he had signed it we'd have some pretty strong evidence that he knew and agreed what he had said, wouldn't we?
A. Yes.
Q,. Did you ever get any opportunity to do that?
A. No, that, unfortunately, didn't occur to me.
Q. A police prosecutor; it didn't occur to you, is that right?
A. That's right.
Q. Trained to be in Courts; know how everything is admitted into evidence?
A. Yes.
Q. Know what the meaning of corroboration means?
A. Yes.
Q. Didn't occur to you?
A. No.
Q. What about the folder; did it occur to you to give him the benefit of reading what was in the folder?
A. No, it was in the same position.
Q. I mean, you went to the trouble, you tell this jury, to bring this to the attention of another policeman, didn't you?
A. Yes, I did.
Q. Why didn't you go to the trouble of bringing it to the attention of the man you say used the words?
A. The only time that I ever mentioned it, I think in the defendant's presence, was a bail application - in a bail application. I'm certain that I did mention it then but I'm not certain when or where.
Q. You didn't mention that in your statement, did you?
A. No, the statement was made two days after the event.
Q. Who asked you to make a statement, do you remember?
A. It was always my intention to make the statement. Sergeant Macrae suggested to me in addition on the Saturday that I make it and also on the Monday I spoke with Detective Sergeant Jones about the matter. I'm not certain if that was before or after I made the statement but I certainly either told him I'd made it or told him I would make it; I'm not certain which.
Q. Did you tell Sergeant Jones about the note?
A. Yes, I did.
Q. Did you show it to him?
A. Well, not on the Saturday. I didn't see him on the Saturday but on the Monday - I'm not certain if I showed it to him or just delivered it to his office." (T366-368)
126 At a later stage of the cross-examination, reference was made to the words allegedly uttered by the appellant in the walkway. The cross-examination continued:
"Q. Are you sure they are the words, sergeant?
A. Yes, definitely.
Q. On your assertion this man suddenly just tells you he has committed a murder?
A. Yes, that is why I wrote them down straight away.
Q. No conversation leading up to it?
A. No." (T370)
127 And later:
"Q. Wasn't the fact however, detective, this accused said that the bloke who did this deserves a medal?
A. No.
Q. That's what he said?
A. No.
Q. And that you have changed that to: 'I deserve a medal'?
A. No, I wrote the words down straight away word for word what he said.
Q. And did not give the man the opportunity to read them to say whether he agreed with it or sign it?
A. No, that didn't occur to me.
Q. How long have you been a police officer?
A. I have been in the Police Service for 12 years but almost all as a police prosecutor so I am not used to that side of --
Q. You know about getting someone to sign a statement, you know the benefit of one?
A. In hindsight I wish I had.
Q. Every day police come to court and say: 'I spoke to the man who had the accident, I spoke to him and asked him to sign this.' You see that every day?
A. Yes.
Q. You did not speak to the accused?
A. Not at the time, no." (T371)
128 Phillip Steven Uebel, the third Correctional Services officer involved in the escort, was then called. His evidence was relatively brief but we note the following passage from his examination in chief:
"Q. Now, I think there were a number of other officers involved in that particular transportation?
A. Yes, with that sort of rating of the inmate there was three of us.
Q. That is a standard number?
A. Hm mmm.
Q. Do you have a clear recollection of forming the escort?
A. It is a fair while ago, I even forgot about the whole thing, but as time went by I remember going on the escort.
Q. What can you remember about the role you performed?
A. The only thing I can, other thing I can think of is he was handcuffed to Barron, (sic) I equate Barron with being smaller, and he was handcuffed to the inmate, and I carried the weapon.
Q. As a result of you carrying the weapon did you keep a distance away?
A. Yes, there is a safety distance you must maintain whenever you carry a weapon even if the inmate is handcuffed.
Q. Can you remember the distance?
A. You must remain in sight of the inmate, but usually about five feet is the distance.
Q. Do you have any recollection of any conversation that took place at any stage while you were performing that role?
A. Well, the inmate was fairly talkative but for the life of me I can't remember what he said.
Q. Did you actually go into Court that day?
A. It's the first time I've actually been in a Court. I remember walking up steps; it was all strange to me.
Q. You remember walking up steps?
A. Yes.
Q. You cannot assist the Court with any conversation that occurred that day?
A. If I could I would.
Q. That is something you have done before?
A. The only thing I do remember he was talking I believe but, as I said, being the first time I was in Court that was unusual.
Q. That sticks in your memory?
A. Yes.
Q. That the accused was talking a lot?
A. Yes, he was talking quite a lot but nothing sticks." (T372-373)
129 Correctional Services Officer Hindmarsh, who was the third member of the escort party was not called and no explanation was given by the Crown for the fact that he was not called.
130 Sergeant Harvey McRae was the final witness called on this issue. In evidence in chief he was asked what occurred after the court hearing was concluded and Barron approached him:
"Q. Tell the Court what occurred, not what was said, what occurred?
A. When Sergeant Barron, the Junee correctional officers and the accused returned, I was approached by Mr Barron, the prosecutor --
Q. He spoke to you at that stage?
A. Actually he had a bit of a stunned look on his face.
OBJECTION QUESTION PRESSED ALLOWED
Q. I do not want you to tell the Court what was said?
A. That's correct.
Q. Unless it was in the hearing of the accused?
A. Yes.
Q. Where was the accused at that particular time?
A. I believe the actual accused would be about two to three yards away.
Q. I will not press that, but you noticed something about the expression of Mr Barron you told the Court about. Did he speak to you?
A. Yes, the actual prosecutor told me certain things.
Q. Did he do anything else at that stage?
A. Yes, actually when he walked in he made a comment to me, which amazed me quite a bit, and from the document he had with him he actually read a phrase.
HIS HONOUR: I would be obliged if you would just answer the question that you are asked.
Ladies and gentlemen, it is not a matter for you whether Sergeant McRae was amazed at anything or not, put that out of your mind.
CROWN PROSECUTOR: Q. In terms of the documents, the prosecutor had with him the actual court papers?
A. Papers or I think it was a vanilla (sic) folder with the actual charge and an exhibit, other papers.
Q. Did I understand from what you said before he read something from that paperwork to you?
A. Yes, he made a comment to me.
Q. Did he actually show you any paperwork?
A. Not that I remember.
Q. Did you have a brief conversation with him - don't tell me what was said?
A. I did.
Q. Did he at that stage then leave?
A. I believe so, yes." (T375-376)
131 It is necessary when considering the question of unfairness to consider the combined effect of the abovementioned witnesses. The significant matters which have to be considered in this regard are, in our view, as follows:
· Despite the circumstances in which the alleged admissions were made the Crown was unable to call any witness to support the relevant evidence of Bouffler or Barron that the statements in question were made to them.
· The fact that in giving his evidence Bouffler was entirely reliant upon his recollection of events occurring one year and eight months earlier. The appellant was never offered the opportunity to confirm or deny that he had made the alleged statements to Bouffler.
· There are grave problems about Barron's evidence in that despite his lengthy experience as a police prosecutor (who must be assumed to have a working knowledge of the relevant laws of evidence in criminal proceedings) no opportunity was given to the appellant to respond to the words written on the scrap of paper and the manila folder.
· There is a discrete problem about the scrap of paper and the manila folder. Neither of these documents was admissible: see Driscoll v The Queen (1977) 137 CLR 517; Stephens v The Queen (1985) 156 CLR 664. They were, however, marked for identification, and it is obvious from the quoted portions of the transcript of Barron's evidence that it was made abundantly clear to the members of the jury what the contents of the documents were and that the words were written in green ink. They were prominently displayed in the court, having been marked MFI 17 and MFI 18 respectively. At one stage Barron read from the scrap of paper (MFI 17). The manila folder was not only produced but it was held up before the jury. The evidence was that the folder recorded the exact words which the witness had earlier related to the court. There was an added embellishment to the above in that Barron produced the green pen which he said he had used to make the relevant notations on the documents.
· Barron's evidence received implied support from Sergeant McRae to whom the contents of at least one of the documents were read out. He noticed the "stunned look" on Barron's face when he first spoke to him. Interestingly, at that time the appellant was only two or three yards away from McRae and Barron but neither officer seems to have considered the appropriate course was to make the document available to the appellant for his response to be recorded.
· No consideration seems to have been given to the fact that Barron's responsibility was to present, impartially and independently, to the duty magistrate the case for the prosecution in what was a bail hearing. The fact that no application was made for bail is not here to the point. It must have occurred to Barron that in the circumstances which occurred he became a potential significant witness in any future proceedings against the appellant. It would have been clear from the documentation available to Barron that the appellant had declined to be interviewed and Barron, according to his evidence, found himself in possession of evidence of a critically damning nature against the appellant. These exceptional circumstances imposed a very considerable responsibility upon Barron to exercise maximum care to avoid any unfairness or prejudice to the appellant by reason of what had happened within the precincts of the court.