In the interview the appellant said that he had told the police officer (Constable Munro) that he had taken the gun from his brother-in-law.
45 At the trial counsel then appearing for the appellant objected to evidence being admitted of the conversations the police officers said in their statements they had had with the appellant or had heard other police officers have with the appellant on the morning of 29 September 2002. The objection was primarily based on s 281 of the Criminal Procedure Act.
46 Section 281 of the Criminal Procedure Act is in the following terms:-
"281 Admissions by suspects
(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 relates 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".
47 At the trial counsel then appearing for the appellant initially included, in the evidence he was objecting to, any evidence from Constable Munro of his first conversation with the appellant, after the point where Constable Munro asked "what's happened?" (trial transcript page 11 lines 7-15). However, soon afterwards counsel for the appellant at the trial changed his position. The following exchange occurred between the trial judge and counsel for the appellant at the trial (trial transcript page 12 line 5 - line 53):-
"HIS HONOUR: I asked about paragraph (a) (of s 281(1)): How do you come within paragraph (a)? You have to show that at the time Mr Taouk said these words, he was or could reasonably have been suspected of having committed an offence.
SPENCER: 'I have just shot someone'.
HIS HONOR: They're the words you're objecting to?
SPENCER: Your Honour is right but once that is said, he must then become a suspect. Once those words are used. 'I've just shot someone at my house. I had an argument with my brother and he had a gun. I took it off him and I fired a few shots'.
Once that is said, clearly Mr Taouk is a suspect. Anything following that must be recorded, unless reasonable excuse is tendered for it not being done.
HIS HONOUR: Is it appropriate, then, to distinguish between the words in which the accused said what had happened and the continuation of the conversation?.
SPENCER: Yes, your Honour. There is little doubt the officer couldn't have know anything about it at that time. But once those words were used, he must have a real suspicion of a crime and then he goes on to further questioning.
HIS HONOUR: So you say that when Constable Munro was told that the accused had shot someone, the accused could reasonably have been suspected, by him, of having committed an offence?
SPENCER: Yes your Honour.
HIS HONOUR: Yes, I follow that. That would leave the words untouched by the section, though, wouldn't it, up until those words were said?
SPENCER: Yes.
HIS HONOUR: 'I have just shot someone at my house. I had an argument. He had a gun and I took it off him and fired a few shots'.
SPENCER: Constable Munro couldn't know anything about that until after he was told. The rest of it is objected to for those reasons".
48 Accordingly, counsel for the appellant at the trial did not ultimately object to evidence being given of the appellant's first conversation with Constable Munro on the ground that the evidence was rendered inadmissible by s 281.
49 However, it was submitted by counsel for the appellant at the trial that the evidence which the Crown proposed to adduce of other conversations with the appellant was evidence of admissions to which s 281 applied, being admissions made by an accused person who, at the time the admissions were made, was or could reasonably have been suspected by an investigating officer of having committed an offence and as being admissions otherwise falling within s 281(1); that there was no tape recording of the admissions within par (a) of s 281(2); that the prosecution could not establish that there was a reasonable excuse within par (b) of s 281(2) as to why a tape recording within par (a) could not have been made; and consequently, evidence of the other conversations should not be admitted.
50 After hearing argument on the admissibility of evidence of the other conversations Barr J delivered a judgment. In this judgment his Honour said that s 281 of the Criminal Procedure Act did not apply to the first conversation Constable Munro said he had had with the appellant. His Honour said in par 3 of his judgment:-
"Constable Munro did not know the accused and did not know, until the accused told him, that there had been a shooting at his house. It seems to me that Constable Munro did not suspect and had no reason to suspect that the accused had committed any offence. Section 281 of the Criminal Procedure Act therefore has no application to the first conversation that he and the accused had. In my opinion the whole of the contents of paragraph 4 of Constable Munro's statement is admissible and subject to any objection on any different ground ought to be admitted into evidence".
51 However, his Honour proceeded to hold that s 281 of the Criminal Procedure Act did apply to the second conversation Constable Munro had had with the appellant, as set out in par 8 of Constable Munro's statement, and to all the conversations the other police officers had had with the appellant. His Honour found that the police officers who had been informed, directly or indirectly, by Constable Munro of what the appellant had told Constable Munro in his first conversation with Constable Munro must have suspected that the appellant had committed an offence. There had been no tape recording of any of these conversations and the prosecution had not established that there was a reasonable excuse as to why a tape recording could not have been made.
52 Accordingly, Barr J ruled that evidence of the first conversation with Constable Munro was admissible but that evidence of all of the other conversations was rendered inadmissible by s 281.
53 On this appeal counsel for the appellant submitted that the trial judge had erred in admitting evidence by Constable Munro of the first conversation Constable Munro said he had had with the appellant. It was submitted that, as soon as the appellant said to Constable Munro "I want to report a disturbance at my house" the appellant became a person who could reasonably have been suspected by Constable Munro of having committed an offence.
54 It was pointed out by counsel for the appellant that the word "could" in the expression "could reasonably have been suspected" in s 281(1)(a) was different from the word "ought" in the corresponding part of s 424A of the Crimes Act, a predecessor of s 281, and it was submitted that the expression "could reasonably have been suspected of having committed an offence" was wider than the expression "ought reasonably to have been suspected of having committed an offence". Counsel for the appellant referred to an unreported judgment of Bell J in R v Crowther-Wilkinson NSWSC 70096/01 8 May 2002, in which her Honour said at par 31 with reference to s 424A of the Crimes Act and the then s 108 of the Criminal Procedure Act, which was in the same terms as the present s 281:-
"It may be that the class of persons who "could reasonably have been suspected by an investigating official of having committed an offence" is broader than the class of persons who "ought reasonably to have been suspected by an investigating official of having committed an offence".
55 Counsel for appellant referred to the recent decisions of the High Court in Kelly v The Queen (2004) 78 ALJR 538 and Nicholls v The Queen; Coates v The Queen (2005) 213 ALR 1. In Kelly the appellant, who had been arrested on a charge of murder, was interviewed by police at a police station in an interview which was electronically recorded. During the interview the appellant said that a statement made by him in an earlier conversation with police, in which he had implicated himself in the murder, had been made as a result of threats by a police officer. About half an hour to an hour after the electronically recorded interview had finished, while the appellant was still at the police station, the appellant, according to police officers, admitted that the allegation that he had made against the police officer during the interview was false. The appellant's admission was not made in response to any questioning by police.
56 In Kelly the majority of the High Court (Gleeson CJ, Hayne and Heydon JJ) held that evidence of the admission was not excluded by s 8 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas), a provision in similar but not identical terms to s 281 of the Criminal Procedure Act, because the admission had not been made "in the course of official questioning". The other members of the Court (McHugh J and Kirby J) dissented.
57 In Nicholls v The Queen; Coates v The Queen the only ground of appeal relevant to the present appeal was Coates' first ground of appeal.
58 Coates had been interviewed by police at a police station in an interview which was videotaped. During a break in the videotaped interview, which police asserted had been initiated by Coates, and while filming was suspended, Coates, according to police officers, made a number of admissions. When the videotaped interview was resumed the admissions were not put to Coates or confirmed by Coates.
59 It was held by the trial judge and by the Western Australian Court of Criminal Appeal that evidence of the admissions was not excluded by s 570D of the Criminal Code (Western Australia), a provision in similar but not identical terms to s 281 of the Criminal Procedure Act, for the reason that the prosecution had established that there was a reasonable excuse for there not being a recording of the admissions. The majority of the High Court (McHugh, Gummow, Kirby and Callinan JJ) held that there had not been any reasonable excuse for there not being a recording of the admissions and that evidence of the admissions had been wrongly admitted. The other members of the Court (Gleeson CJ, Hayne and Heydon JJ) dissented.
60 It was submitted by counsel for the appellant in the present appeal that the judges forming the majority in Coates, which was the later of the two decisions, had held that a statutory provision of the nature of s 570D of the Criminal Code (Western Australia) should be given a purposive construction (McHugh J at 28-30 (98-108), Gummow and Callinan JJ at 42-44 (149-157) and Kirby J at 57-59 (212-221)
61 In Coates McHugh J at 28 (98) and Gummow and Callinan JJ at 42-43 (150) referred to what Gleeson CJ, Hayne and Heydon JJ had said in their joint judgment in Kelly at 548 (420), that the purpose of legislation of this nature is to overcome problems with so called "verbals", that is disputed evidence of alleged oral admissions made to police officers, including "the possibility of police fabrication and the ease with which experienced police officers can effectuate it, frequent lack of reliable corroboration of the making of the statement and the practical burden on an accused person seeking to create a reasonable doubt about the police evidence".
62 It was submitted by counsel for the appellant in the present appeal that s 281 of the Criminal Procedure Act is a legislative provision of the same nature as s 8 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) and s 570D of the Criminal Code (Western Australia), that its purpose is the same as the purpose of those legislative provisions and that, in accordance with the judgments of the majority in Coates, s 281 should be given a purposive interpretation so as to effectuate its purpose.
63 Counsel for the appellant contended that, if proper regard was had to the use of the word "could" in s 281(1)(a) and if s 281(1)(a) was given a purposive interpretation, then this Court should hold that the trial judge had erred in not finding that, as soon as the appellant said "I want to report a disturbance at my house", the appellant became a person whom Constable Munro could reasonably have suspected of having committed an offence.
64 It was contended that such a conclusion would be supported by the time of the night at which the appellant had presented himself at the police station and by the fact that the appellant's subsequent disclosures to Constable Munro were not spontaneous but were made in response to a question asked by Constable Munro ("what's happened?")
65 It was submitted by the Crown on this appeal that Constable Munro could not reasonably have suspected the appellant of having committed an offence, at the stage where the appellant had merely said "I want to report a disturbance at my house".
66 As has already been shown, counsel who appeared for the appellant at the trial did not ultimately object to Constable Munro giving evidence of his first conversation with the appellant. Consequently, the leave of this Court under r 4 of the Criminal Appeal Rules is required in order for the appellant to rely on this ground of appeal.
67 However, although evidence of the first conversation was not ultimately objected to by counsel for the appellant at the trial, that evidence was closely linked to evidence which was objected to and the trial judge in his judgment gave consideration to whether evidence by Constable Munro of his first conversation with the appellant was admissible and made an explicit ruling that the evidence was admissible. In these circumstances, I do not consider that this Court should dispose of this ground of appeal, by refusing leave under r 4.
68 In his judgment the trial judge found that at the time of his first conversation with the appellant Constable Munro "did not suspect and had no reason to suspect that the accused had committed any offence".
69 It was submitted, rather faintly, by counsel for the appellant that in making the finding that Constable Munro "had no reason to suspect that the accused had committed any offence", the trial judge had not properly applied the terms of s 281(1)(a), that the person "could reasonably have been suspected of having committed an offence". However, the trial judge had stated the full terms of s 281 earlier in his judgment and I do not consider that it should be held that the trial judge failed to apply the terms of s 281.
70 If, as I have held, the trial judge properly applied the terms of s 281, the trial judge should, in my opinion, be regarded as having made a finding, albeit a negative finding, that it was not the case that, at the time when the first conversation occurred, the appellant was a person who either was or could reasonably have been suspected by Constable Munro of having committed an offence. Error by the trial judge in making such a finding would be established, only if there was no evidence to support such a finding (R v O'Donoghue (1988) 34 A Crim R 397, R v Khouzame [2000] NSWCCA 505). In my opinion, there was evidence to support such a finding and the first ground of appeal in the present appeal could be disposed of, simply on the basis that it has not been established that the trial judge was in error in making such a finding. I will, however, proceed to consider whether, if the matter was at large in this Court, it should be held that the admissions made in the first conversation with Constable Munro were made at a time when the appellant could reasonably have been suspected by Constable Munro of having committed an offence.
71 I accept, as was submitted by counsel for the appellant, that s 281 of the Criminal Procedure Act is in different terms from the former s 424A of the Crimes Act and is also in different terms from the interstate legislation considered by the High Court in Kelly and Coates. I also accept that there could be cases in which a person "could" reasonably have been suspected by a police officer of having committed an offence, even though it could not be said that he "ought" reasonably to have been suspected by the police officer of having committed an offence.
72 I also accept that s 281 of the Criminal Procedure Act is legislation of the same nature as that considered by the High Court in Kelly and Coates, has the same purpose as that legislation and should, in accordance with the views of the majority in Coates, be given a purposive interpretation.
73 However, in my opinion, even accepting that a purposive interpretation should be given to s 281, it is necessary that some regard be had to the actual language of s 281 and some effect be given to the word "reasonably" in the expression "could reasonably have been suspected". A person could not reasonably have been suspected by a police officer of having committed an offence, unless something has been said or done which would provide some grounds for a police officer reasonably suspecting that the person has committed an offence.
74 In my opinion, the attendance by the appellant at a police station, even in the early hours of the morning, and the saying by the appellant to a police officer of words to the effect that the appellant wished to report some untoward occurrence which had happened at his house did not provide any grounds on which the police officer could reasonably have suspected that the person had committed an offence. The police officer could reasonably have formed the view that the appellant was seeking to report an occurrence at his house of which he had been the victim or which he had witnessed but not an occurrence involving the commission by the appellant himself of some offence. It is common for members of the public to report to police crimes of which they have been the victims. It is much less common for members of the public to report to police crimes which they have themselves committed.
75 After the appellant had told Constable Munro that he wished to report a disturbance, Constable Munro asked the appellant a completely non-leading question "what's happened?" and the appellant in a few, very brief sentences, uninterrupted by any further question from Constable Munro, told Constable Munro what had happened. Like the trial judge and like counsel for the appellant at the trial, I consider that the appellant could not reasonably have been suspected by Constable Munro of having committed an offence, until after the appellant had completed giving his brief account of what had happened at his house.
76 As has been shown earlier in this judgment, the issues in the High Court cases of Kelly and Coates were different from the issue in the present ground of appeal. In both Kelly and Coates the accused was clearly an actual suspect at the time when the alleged admissions were made and there was no need for the courts to consider whether, at the time the alleged admissions were made, the accused "ought" reasonably to have been suspected by a police officer of having committed an offence (Kelly) or whether there were reasonable grounds for a police officer to suspect that the accused had committed an offence (Coates).
77 In both Kelly and Coates the accused was an actual suspect who had been or was being interviewed at a police station in an interview which was being electronically recorded. In both cases there was a much greater potential than in the present case for the police to falsely allege that the suspect had made oral admissions which were not recorded in the recorded interview or of the suspect falsely alleging that oral admissions he had in fact made had been fabricated by the police.
78 In my opinion, this part of the appellant's first ground of appeal against conviction should be rejected.
79 An alternative submission was made by counsel for the appellant that this Court should hold that evidence by Constable Munro of his first conversation with the appellant, after the appellant said "I want to report a disturbance at my house", had been erroneously admitted, because the trial judge should have excluded the evidence in the exercise of his discretion. The principal discretion which, it was submitted, the trial judge should have exercised was the discretion conferred by s 90 of the Evidence Act, under which a court may refuse to admit evidence of an admission, if the evidence is adduced by the prosecution and, "having regard to the circumstances in which the admission was made, it would be unfair to the defendant to use the evidence". However, reference was also made by counsel for the appellant to the discretion conferred by s 138 of the Evidence Act to exclude improperly or illegally obtained evidence.
80 Counsel referred to The Queen v Swaffield (1997) 192 CLR 159, in which the discretion at common law to exclude evidence on the ground that it would be unfair to the accused to admit the evidence was discussed (for example per Toohey, Gaudron and Gummow JJ passim at 189 - 202 (53 - 92)). It was submitted that the judgments in Swaffield provide useful guidance for the application of the statutory discretion under s 90 of the Evidence Act.
81 Counsel for the appellant submitted that the circumstances which would render it unfair to the appellant to admit the disputed evidence included the following (I have to some extent re-arranged counsel's list):-