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[2004] WASC 62
Supreme Court of WA
2004-04-05
Ms P, Mr J, Smith J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : THE STATE OF WESTERN AUSTRALIA -v- YERKOVICH [2004] WASC 62
Criminal law - Admissions and confessions - Videotaping of interview - Accused declined to answer questions - Allegations that immediately thereafter he admitted to having gun used in offences and subsequently directed police to location where gun found - Admissibility of evidence - Section 570D Criminal Code
Criminal law - Evidence - monitored and recorded telephone calls - Accused in prison on remand - Consciousness of guilt - Admissions - Admissibility - Discretion
Azar v The Queen (1991) 56 A Crim R 414
1 ROBERTS-SMITH J: On 21 January 2004 the accused appeared before me for trial on an indictment dated 14 July 2003 charging him with one count of aggravated burglary contrary to s 401(1) of the Criminal Code ("the Code"), two counts of aggravated armed robbery, contrary to s 332 of the Code, one attempted extortion contrary to s 397(2) of the Code and one count of stealing a motor vehicle contrary to s 371A and s 378 of the Code.
3 The accused has been in custody in respect of these charges since 21 January 2003.
4 Some days prior to trial I had caused my Associate to inquire of the prosecution and defence whether there would be any issues of law which would need to be resolved prior to trial, or in the absence of the jury at trial.
5 It was not until the morning of 20 January that the State Prosecutor advised that there was to be a challenge to two areas of evidence and that it was intended to have them dealt with after the jury had been empanelled and whilst they were selecting their foreperson.
6 The first challenge was to be to the admissibility of evidence from police officers that following a video record of interview ("VROI") in which the accused declined to answer any questions, he nonetheless immediately thereafter made some admissions as to a gun and subsequently took the officers to a suburban laneway where it was located.
7 The second category of evidence comprised monitored and recorded telephone calls from Hakea Prison between 4 and 30 December 2003 as evidencing admissions or a consciousness of guilt by the accused.
8 The evidence in respect of the handgun was contained in the witness statement of Detective Bethell dated 16 December 2003 and which was contained in the prosecution brief originally filed with the court and served on the defence.
"28. I conducted a video record of interview with the accused in which he declined to answer any questions in regards to the matter.
29. Following the interview the accused volunteered that he had thrown the handgun away that was used in the alleged offence.
30. He agreed to show me where it was and directed myself and Senior Detective MILLAR to a laneway between shops on Flinders Avenue Yokine.
31. He then pointed to a grassed area near a brick wall.
32. I checked the grass area and located a black pistol with brown tape around the handle.
33. The pistol did not have a magazine.
34. I caused forensic officer BEATON to attend the scene and instructed her to photograph the pistol in situ.
35. I seized the pistol ..."
10 There are two subsequent statements of Detective Bethell, both dated 7 January 2004. One is a four page statement to which I shall return below. The other is a nine page statement which is an expansion in some respects of his statement of 16 December 2003. The paragraphs relevant to the video record of interview and the handgun state ([31] - [43]):
"31. I conducted a video record of interview with the accused in which he declined to answer any questions in regards to the matter.
32. Following the interview the accused stated that he had not had a handgun.
33. I told the accused that I believed he was telling lies as three complainants had seen him with the gun.
34. The accused then said 'I've thrown the gun away anyway.'
35. He went on to state that he had been in a shop in Yokine when he believed he was being followed by police and had thrown the gun away in case he was arrested.
36. I told him that it was important that we retrieved the gun as there was a case recently when a police officer had his gun taken from him and thrown away and that some kids had found it and could have shot someone.
37. The accused agreed that it was dangerous to leave the gun where it was and agreed to show me where it was.
38. He directed myself, and Senior Detective MILLAR to a laneway between shops on Flinders Avenue Yokine.
39. He then pointed to a grassed area near a brick wall.
40. I checked the grass area and located a black pistol with brown tape around the handle.
41. The pistol did not have a magazine.
42. I caused forensic officer BEATON to attend the scene and instructed her to photograph the pistol in situ.
43. I seized the pistol ..."
11 In accordance with the usual procedure in the criminal jurisdiction of this Court, a status conference had already been held in this matter. That was before Wheeler J on 7 December 2003. The transcript records the matter beginning with a discussion about the time required for trial:
"KITTO, MR: This matter is just a routine status conference. The accused has been arraigned the last time he came before your Honour.
WHEELER J: Thank you.
KITTO, MR: The matter is ready to go to trial as far as we're concerned. It's just a case of listing.
WHEELER J: All right. Give me a length first and we will work through the other questions afterwards.
KITTO, MR: I estimate 2 to 3 days, your Honour.
WHEELER J: 2 to 3 days. Is that - - -
KITTO, MR: I understand there are three crown witnesses.
WHEELER J: All right, and is it the crown's estimate also?
PORTER, MR: 3 days.
WHEELER J: 3 days. So we will say 3 days ..."
12 Her Honour then confirmed that the defence had received the prosecution brief and asked a number of other procedural questions of counsel. She then asked about the VROI (t 6-7):
"WHEELER J: Has there been a video-recording of the police interview?
KITTO, MR: No.
WHEELER J: No, so there's no question there. Any other evidentiary matters that need to be determined before the jury is empanelled? There is something about volunteering the whereabouts of the gun.
KITTO, MR: Yes.
WHEELER J: Is there any issue taken about that?
KITTO, MR: There will be no legal issue taken on that matter.
WHEELER J: Okay. Any other difficulties known bearing on the conduct of the trial?
KITTO, MR: There is one issue which I would flag for your Honour and my learned friend; that is the location of a defence witness. We are doing our level best to find a person who may be able to give us some information. That search has been unsuccessful to date. It is possible, but it's only remotely possible, that if this person's evidence turns out to be absolutely crucial and we still cannot locate them, an application may be made at a later time to vacate the trial.
WHEELER J: How would you know whether the evidence was crucial or not without locating them?
KITTO, MR: That's the whole catch-22 situation. We have to speak to them. On my instructions the evidence is crucial. I remain optimistic that we can locate this person. We do know their whereabouts. It's just a case of speaking to them, so all I can do is indicate to your Honour and my learned friend the likelihoods and in my experience it's unlikely this matter will be delayed from getting to trial." (My emphasis).
13 When I inquired of counsel for the accused why the issue was now being raised when it had been expressly disavowed before her Honour on 7 December 2003, he said that at the time his representations to her Honour were quite correct. He pointed out what he had said about looking for a witness and said that person was subsequently located and able to give him information which led counsel to believe the defence may be able to challenge the admissibility of the accused alleged statements to the detectives as to where the gun might be located.
14 He said the information received from this person gave him "apprehension" that the statements attributed to the accused by the police officer could not have been true. He added:
"... also it comes down to whether the gun could in fact be in that location that police alleged the accused took them to. It doesn't just go to the credit of the accused. It possibly goes to the credit of the police officer."
15 Counsel submitted that if it were not for the involvement of this other person it might well have been the case that the Court in its discretion could admit the evidence "as an exception to the s 570D(2) rule" because the State may well be able to prove on the balance of probabilities that there was reasonable excuse, namely, the truth of the unrecorded statements by the accused, which would enable its admission, "because there would be nothing to balance that truth against."
16 At that stage counsel agreed that I would need to hear the evidence of the witness on the voir dire - although somewhat later he said he was not prepared to commit to that.
17 So far as the monitored and recorded telephone calls ("the recorded calls") were concerned, the State Prosecutor advised that the DPP had originally been served only with a disk of the recorded calls. She subsequently told the police they would require a typed transcript. That did not become available until the day before the trial. There are some 13 or so telephone calls and in their present unedited form would probably take approximately two hours to listen to in full.
18 The State Prosecutor told me that were I to hold the evidence of the recorded calls admissible, there would still need to be considerable editing done, to exclude irrelevant material, before they could be led in evidence. She later said a period of two weeks may be required for that.
19 It was patently obvious that the determination of these issues following a voir dire would likely occupy a substantial period of the time allocated for the three day trial. Because of court listings and other commitments it was not possible to conduct the trial beyond those three days.
20 Under the circumstances, I pointed out to counsel there was no alternative but to adjourn the trial and have it re-listed. I said that in the meantime I would deal with the evidentiary issues by way of a hearing under s 611A of the Criminal Code, a course which is permissible whether or not the Judge making rulings in that way is the trial Judge.
21 This situation was entirely unsatisfactory. The Court listings were such that the earliest possible time for the accused's trial to be re-listed could not be until at least after August 2004.
22 In the event the accused was remanded in custody to a status hearing on 11 May 2004.
23 Before turning to the evidence on the voir dire it is necessary to briefly indicate the nature of the prosecution case alleged against the accused. It is as follows.
24 On Sunday night, 12 January 2003 about 11.30 pm, the accused went to a residential unit at Wangara. That was a portable home located at a caravan park. The occupants were Stuart and Kevin Murray and a friend, Christopher Markham. The three of them were watching television. The accused knocked on the door and Kevin Murray answered it.
25 The accused said "You're Stuart Marshall". Murray denied that but the accused said "Bullshit". He then pointed a pistol at Murray's forehead with the barrel about one inch from his head. The pistol was black and about 20 cm long. Murray protested that his name was not Stuart Marshall and he offered to give identification. The accused said that could be false.
26 By then they had moved inside the house. The accused continued to say he thought Murray was Stuart Marshall but all of those in the house kept telling him that was not so.
27 The accused pointed the gun at Stewart Murray and told Kevin Murray and Chris Markham to sit on the couch. He asked whether they knew a Paul Joseph. Stewart Murray thought the name sounded familiar and the accused said that he had died a month ago and Murray owed him $17,500 and just because he was dead he need not think he would not have to pay. Stewart Murray said he did not know what the accused was talking about and that he did not owe anybody any money. Stewart Murray showed the accused his wallet containing various cards with his name. The accused continued to threaten Stewart Murray with the gun and put the wallet in his own pocket.
28 The accused asked who else was in the house. Stewart Murray said there was no-one else there; the house belonged to his father and he was at his girlfriend's place. The accused told Kevin and Chris to stay where they were and directed Stewart Murray with the pistol to walk through the house. He forced Murray to open draws and tins and lift the mattress. While this was happening, Murray saw the accused had a knife tucked down the front of his pants. The knife had a silver metal handle about 3 to 4 inches long.
29 The accused said "You've had 17-1/2 thousand dollars the last month. Where's all your stuff to show for it? You've just got shit", he then punched Murray on the chest with his left fist and told him to sit on the bed. He started looking through things on the dressing table and asking what they were and then asked where all the drugs were. Murray said that if he had any drugs he would hand them over to him. He then made Murray take him into his father's room where he rummaged through what was there. They returned to the lounge room. The accused threatened to "cap" them a number of times and asked how they thought they were going to pay the debt.
30 He took some playstation games and the spare car keys. He told Murray to pay the money by Wednesday but if he had to wait until Friday there would be an extra 10 per cent for his time and he threatened that if they thought of running he would "cap" his brother and his father.
31 The accused saw Murray senior's floor safe near a table by the front door and when Murray said he did not know how to open it, the accused put the pistol to the back of his head and ordered him to open the safe. He still could not. The accused took the safe and all of the phones from the house and ordered Murray to carry the safe down the front steps. As he was doing so the accused jabbed the barrel of the pistol into the back of his neck, hurting Murray.
32 They went around the back of the house where Murray saw a car parked nearby with its lights on and a person walk from the driver's door over to the fence. The accused handed that person the safe and he put it in the car. Both of them got into the car and drove off.
33 The following Tuesday 14 January 2003, Stewart Murray was home with his father when the telephone rang. He said "It's Ben" and passed the phone to Stewart Murray. The accused was on the phone and asked whether he had the money yet. Murray said "no", he was still trying to sort it out and "would know more tomorrow". The accused said he would ring the following day. He telephoned then and again five times on 18 January, leaving threatening messages.
34 Stewart Murray maintains he did not have any idea what it was all about and knew he did not owe anybody any money.
35 At 7.41 pm on Tuesday 21 January 2003, Detectives Bethell and Millar conducted a video record of interview with the accused.
36 Following the caution and on being asked to explain his understanding of it, the accused said that he did understand but it did not matter because he did not intend to say anything anyway. He repeated that he would not be saying anything. The allegations were put to him and on each time he was asked to respond, he said he had nothing to say.
37 The interview concluded at 7.47 pm and Detective Millar left to turn off the recording machine. After a short pause the accused is heard to say "This is bullshit" and something about telling his side of the story. The tape then ends.
38 At the outset, Mr Kitto informed me the accused would make certain formal admissions at trial. They are set out in a "Minute of Formal Admissions by the Accused" dated 21 January 2004 and are:
"1. On 12 January 2003 at about 11 pm he went to Unit 32/289 Sydney Road Gnangara and spoke to Stuart (sic) Ainsley Murray, Kevin John Murray and Christopher Francis Markham.
2. At the time and place he picked up a portable floor safe containing various items of personal jewellery and passports, six playstation games, a coin collection, a small rock with gold specks in it, a Burswood casino pendant.
3. He gave the playstation games to Angela Wright to sell on his behalf to a pawn broker and gave her the coin collection to keep.
4. He retained the rest of the items in his bedroom at Maddington.
5. On 21 January 2003 he was driving at (sic) white Holden commodore sedan and had the keys of that vehicle in his pocket when he was taken in by the police for questioning."
39 The State called two witnesses on the voir dire, they being Detectives Bethell and Millar. The accused gave evidence but called no witnesses.
40 In his evidence on the voir dire Detective Bethell said that once the video recorder was turned off the accused again said "It was bullshit. There was no gun". The detective testified he told the accused what he was saying was "bullshit" because there were three witnesses at the scene who saw him with the gun.
41 No notes were made of this conversation, nor was the accused further cautioned.
42 According to Detective Bethell the accused then said words to the effect that anyway, he had got rid of the gun "it's been thrown away". He said that he believed he was being followed by police to a newsagent in Flinders Avenue, Yokine. He said that he was aware undercover officers followed him into the store and so he left and threw the gun down a laneway.
43 Detective Bethell told the accused it was important that if the gun had been thrown away in a public place, it was important the police recover it because it might otherwise be dangerous to other people. He explained to the accused that recently a police officer had had his gun removed in a scuffle in Warwick by an offender who had then discarded the firearm in Girrawheen and that a young child had found it and could have killed someone with it as it was loaded. The detective said that in response to that the accused agreed it was unsafe and he would show them where the firearm was.
44 He was not invited to go back on video. The detective's reason for that was because the accused had previously made it clear he would not be saying anything to police on video.
45 The detectives contacted the forensic office in town and asked for someone to meet them. At that point, all they knew was that they were to meet in Flinders Avenue, Yokine. Detective Bethell said he would advise the forensics officers of the location when they arrived. He wanted the forensic officers there to take photographs.
46 Detectives Bethell and Millar and the accused then went to Flinders Avenue in a police car. The accused directed them to a laneway between a set of shops near the top of Flinders Avenue and Detective Bethell drove down the laneway to the rear to a carpark area. The accused then indicated a location at a cyclone fence and pointed to where the gun was. Detective Bethell asked if he would get out and show the officers. The accused refused to get out of the car. Detective Bethell walked over to the cyclone fence and could see a pistol wedged alongside it. The accused remained seated in the back seat of the car.
47 Detective Bethell contacted a forensic officer and two of them arrived at that location a few minutes later. Detective Bethell asked the forensic officers to take photographs of the firearm in situ beside the wall and fence and he then returned to the vehicle. He asked the accused whether he was willing to come out of the car and point to the location where the firearm was and be photographed doing so. The accused refused.
48 A number of photographs of the firearm in situ and after its removal from the position were taken and were in evidence on the voire dire.
50 In cross-examination Detective Bethell confirmed that he took no notes of the conversation and nor had Detective Millar. The initial conversation when the accused volunteered the information about the gun took place whilst they were still actually in the video interview room.
51 Asked why he did not make a note, Detective Bethell said:
"--- Basically, at that point when we have finished the video, Detective Millar walked in with the videos that he had taken out of the machine and we're finishing up our writing up and he volunteered the information. Basically, we were finishing off our paperwork. He volunteered the information he didn't have a gun. It was sort of, you know, 'That's bullshit, Ben. There were three witnesses there who saw you,' and that's how. It was a general sort of conversation and then suddenly he was saying he's going to take us to where the gun is. I wasn't expecting it. We thought we would go out and get it and, no, I didn't make actual notes of our conversation."
52 He said the main reason they did not put the video recorder on again and ask the accused to repeat what he had said about the gun or to confirm that it had been said, was because the accused had made it quite clear that he was not going to say anything on video.
53 Likewise when they were at the scene, the accused again made it clear that he would not be photographed at the scene.
54 He denied there was any conversation whereby the police officers said words to the effect that they thought there was a gun involved and if the accused were to give them a gun they would make it a bit easier for him.
55 In re-examination, Detective Bethell further explained what had been in his mind (t 60):
"--- My priority at that point or obviously before, prior to him making the admissions volunteering about the gun basically when the video was off, he was going to be lodged in the lockup. I'd finished. We had the evidence that we needed to charge him. Then he volunteered the details about the gun. My priority at that time of the night, as we had been working a fair while during the day and we had had him in our custody for some time as well and it was about time he was lodged, was that we get the firearm and find it before somebody else finds it.
So once he volunteered the information, you decided it was more important to locate the firearm?---He'd indicated it had been left in a fairly sort of public place, sort of a laneway where people had access to. In fact, I probably believed that when we got there, we probably weren't going to find anything, but at the time there was also a priority, if it was there, to recover that firearm and make sure nobody - at that stage, obviously, I believed it was a real firearm that we were talking about and that, obviously, there was no danger posed to anybody."
56 Detective Millar gave evidence to the same effect.
57 In addition, in cross-examination, he was asked whether there was any discussion about bail and whether or not the accused had been told that if he was prepared to assist the officers they would be able to grant him bail. He denied that. He did say Detective Bethell told the accused that he could make a bail application and it would be a matter for the court.
58 The accused testified that after Detective Millar turned the video-recorder off, the accused said that it was all "bullshit", he had not done anything. In evidence-in-chief he explained he was referring to the allegations that he had a firearm and was robbing these people. He confirmed that he had instructed his counsel that at trial he would make the admissions referred to earlier. He said he was not denying he was at the premises nor had spoken to the people there, nor that he removed certain property from them.
59 His evidence was that he told the detectives that he did not do it. He did not have a firearm. He went on to say (t 80-81):
"--- Yes, I told them this. This was what I was saying at the end of the video-recording and they said, like they said in their evidence, 'Look, we've got three witnesses saying that you were armed,' and I said, 'Look, this is not how it happened,' and that's when they referred to saying, 'You're not helping yourself here, Mr Yerkovich,' and then it went on a bit to say, 'Do you know where any firearms are then?'
'Do you know where any firearms are'?---That's what they said.
Was it the case that you did know where there were any firearms?---Yeah, I did. I did know where one was. It was then that the police proceeded to tell me a story about some young kid or some gun or something along those lines as to what they said this morning.
Let me stop you there. Detective Bethell I think is his evidence talked to you - I'm sorry, he gave evidence that he said to you that there was a public safety issue involved in having firearms lying around?---Yes, that's right.
There was an incident involving a Warwick police officer who had had a gun taken off him and it was later found by a child. Is it the truth that you admit that those words spoken by Detective Bethell are in fact true?---Yes, they are true.
What else did he say?---He said along the lines of that's it safe to get it off the streets and I also indicated about my bail, if I was getting bail, and they said, 'Well, if you help us, you know, with our investigations, then we can grant bail here or we can also hand letters up to your Honour,' and I said, 'Yeah.' I made it clear that the gun wasn't mine and they said, 'No, no, it's just safe to get it off the street,' and that's when they told me that story, you know, and I said, 'Yeah, no worries' and took them to it.
So is it your evidence that you said to the detectives, 'Look, I might know where there is a gun but it's not the gun - - -'?---That was - that they're accusing me of using, you know.
It's the case, is it not, that you denied using any gun at all?---That's correct.
The detectives say that you were never offered the opportunity to participate in recording those statements on video. Do you agree with that?---Yeah, they never gave me the opportunity to go on video about that because it wasn't concerning my case.
You agree that I put to Detective Millar, 'Look, don't you think it's strange that Mr Yerkovich says nothing at all in answer to your inquiries, he exercised his right to silence on video and then as soon as the video finishes, he volunteers this information quite gratuitously, quite spontaneously?' Is that what happened?---No, that's not what happened. They told me when I asked about bail and them going on about me not helping myself and they promised me there's a letter they were going to write to the judge and that they were able to give me bail and because I knew these charges were that outrageous, I just thought, 'Well' - I also told them that if out, I could prove my innocence that I didn't do this.
If you were granted bail, you could prove your innocence? ---Yes.
Did you tell that to the detectives?---I did.
What did they say or can you tell his Honour which detective you're referring to?---I was mainly talking with Detective Bethell.
What did Detective Bethell say in response to your comment that if you were let out, you could prove your innocence? ---Well, he just said, 'No, no, no, no. First we will see where this gun is,' and went on about that.
When you say went on about it?---Yeah, well, just along that line of conversation he was saying - when he said - I took him to the gun and that was that ..."
60 The accused said there was not much conversation in the car on the way. He told the police officers there were shops there and they seemed to know the way. He was not asked whether he wanted "to go on video evidence".
61 In cross-examination the accused agreed he had been cautioned before the VROI, he had been charged before and he had made admissions on video in police interviews before and he knew they could be used in evidence.
62 He denied telling the police officers that he had been in a Yokine newsagency when he thought he was being followed by police and threw the firearm away.
63 He reiterated that when Detective Bethell told him he had been seen with a gun by three witnesses and recounted a story about a discarded firearm being found by a child, the detective asked him "Do you know where any firearms are?" The accused said he told the police officers he did and he agreed to show them where it was. He insisted he made it clear to them he was not talking about having the firearm himself, because he never did, but about a firearm he just happened to know about.
64 His evidence was that he was told about it by a person with whom he got into conversation out the front of the Parole Office in Maddington. It was a person by the name of Daniel Rowlands. He could not remember when this conversation took place. He had seen Rowlands on a few occasions before and knew him but they were not great friends.
65 The fullest explanation of that incident is contained in the following passages (t 121-122):
"We were out the front of the parole office in Maddington. We were sitting out the front because there's a long waiting list - a lot of people in there. We just started getting talking, I'd been asking what he'd been doing and he told me. He asked what I'd being doing and I said I'd been working, 6 days a week. He then went on to how he said he wanted to change his ways, he wanted to get a job and stuff. I said I would find him - I'd try and find him some work on the building site because they're always employing labourers and stuff. He then went on to tell me about how he had this gun and how he had to get rid of it because his girlfriend - they were going to break up, she didn't want it around.
But it had nothing to do with what you had already been discussing?---About, like - sorry?
The gun came up but that had nothing to do with what you had previously been discussing. Is that what you're saying?---No. Daniel knew I'd been convicted before and he'd - I assumed he told me because he thought I might want it or something but that wasn't the case.
So in any event he said that he had a gun and had to get rid of it. What else did he say?---He told me where he put it and - - -
Why?---Why? Why - he put it there because he was arguing with his - - -
Did he tell you why he was telling you that?---He said in case - he was returning a favour in case, like - because I was going to ask my old man and people on the building site if they needed a labourer.
Yes?---And he said as a favour in return, 'If you ever stop working or doing what you're doing or if you ever need it, I stashed it in a laneway,' and that's why he told me, ..."
66 The accused said the directions given to him were somewhat vague, just that the gun was in a gap at the bottom of a fence behind some shops which were described to him. When the police officers took him to the shops there was only one laneway so he assumed it was there. He denied they asked him to get out the car and be filmed pointing at the gun.
67 When it was put to him that had the detectives asked him to go back on video he would have exercised his right to remain silent again, he said he would not have, he would have explained that the gun had nothing to do with his case. He never had any firearm.
68 The objection is taken under s 570D of the Code, which is in the following terms:
"570D. Accused's admissions in serious cases inadmissible unless videotaped
'admission' means an admission made by a suspect to a member of the Police Force or an Anti-Corruption Commission official, whether the admission is by spoken words or by acts or otherwise;
'serious offence' means an indictable offence of such a nature that, if a person over the age of 18 years is charged with it, it can not be dealt with summarily and in the case of a person under the age of 18 years includes any indictable offence for which the person has been detained.
(2) On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless -
(a) the evidence is a videotape on which is a recording of the admission_;_ or
(b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission_;_ or
(c) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.
(3) Subsection (2) does not apply to an admission by an accused person made before there were reasonable grounds to suspect that he or she had committed the offence.
(4) For the purposes of subsection (2), 'reasonable excuse' includes the following -
(a) The admission was made when it was not practicable to videotape it.
(b) Equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person.
(c) The accused person did not consent to the interview being videotaped.
(d) The equipment used to videotape the interview malfunctioned."
69 Mr Kitto, for the accused, submits there is nothing in the evidence which would suggest there is a "reasonable excuse" within the meaning of s 570D(4).
70 Ms Chong, for the State, submits there was a reasonable excuse for not recording the admission in that the accused did not consent to the interview being video-taped, that being demonstrated by his statements on video that he did not wish to say anything. She submits that there being a reasonable excuse for there not being a recording on video-tape of the admission, the evidence ought to be admitted in the exercise of my discretion.
71 It should be observed at the outset that no question of discretion arises - and certainly not a discretion to admit evidence otherwise inadmissible.
72 Although, in a criminal case, admissible evidence may still be rejected in the exercise of a judicial discretion to exclude evidence (on grounds of unfairness or public policy), there is no discretion to admit evidence which would otherwise be inadmissible. Nor does s 570D import any such discretion.
73 In R v Kadibil [1999] WASC 67, White J excluded evidence from a police officer that subsequent to a video-taped interview in which the accused indicated that he wished to speak to a lawyer and did not want to continue with the interview, he told police officers where the weapon used in the offence could be found. The accused had been charged with wilful murder. After the conclusion of the interview, the police officer escorted the accused to the observation cell and, when they arrived there, said:
"I know you don't want to say anything, Jerry, but will you tell me where the knife is, we've got the blade we just can't find the handle."
74 The evidence of the officer was the accused paused and sat down and then said "creek, it's near the creek".
75 The police officer did not administer a further warning to the accused before putting that question to him. His Honour held it was probable the accused would have understood the warning given during the video-taped interview to be directed only to whatever might be said during that interview. The question was one which could readily have been asked during the video-taped interview and there was no indication that, had that been desired, the accused could not have been returned to the interview room and asked the question so that the question and answer could be taped.
76 White J held that none of the provisions of s 570D(2) was satisfied. The question objected to was not recorded on video-tape, no reasonable excuse was offered for there not being a recording of the admission and there were no exceptional circumstances to justify the admission of the evidence. Accordingly the effect of s 570D(2) of the Code was that the evidence was inadmissible.
77 Ms Chong submits the instant case should be distinguished from Kadibil in that in Kadibil the accused was a tribal Aborigine, whereas the present accused is "a career criminal who knew his rights, and exercised his rights and had then voluntarily made the admission about the location of the gun but did not consent to the interview being video-taped."
78 In response, Mr Kitto submits the special circumstances or ethnicity of the accused are irrelevant to the mandatory operation of s 570D. He says they were not material and not mentioned in Kadibil; the court's finding simply was that because there was no reasonable excuse for not recording the admissions on video-tape, the section dictated the exclusion of the evidence.
79 There was some earlier discussion in this jurisdiction of s 570D of the Code in Stapleton v The Queen [2002] WASCA 328, a decision of the Court of Criminal Appeal, delivered on 4 December 2002.
80 That was an appeal against the appellant's conviction of the wilful murder of a young boy.
81 In his first video interview with police, the appellant made some admissions but not of any involvement in the death. There were further interviews and discussions between the appellant and detectives, out of which the appellant said he would show police where the body was but declined to be interviewed further. Nonetheless, Detective Scantlebury approached the appellant and had another conversation with him later in the night. He did not suggest their conversation should be recorded on video-tape. The appellant volunteered that he had "lost it" and had struck the boy victim repeatedly with a piece of wood "trying to scare him" until the boy went limp and could not be revived.
82 The following day the appellant voluntarily took police officers to a bush area where the boy's body was buried and took part in a video-tape recording there while he showed the gravesite to the detectives. He then approached Scantlebury and asked to speak with him. Again, Scantlebury did not suggest their conversation should be recorded on video-tape. Although the appellant expressed concern that Scantlebury might disclose what he was telling in conversation, he nonetheless continued, confirming again the blows that he had struck and describing attempts to clean up the blood and remove the evidence of what had occurred.
83 In the course of Scantlebury's cross-examination and again during the appellant's own evidence, it emerged that the appellant disputed significant parts of Scantlebury's evidence and denied making important admissions that Scantlebury attributed to him. However, when the trial Judge had ruled that Scantlebury's evidence of the admissions was admissible, his Honour was unaware that the evidence was disputed. In his ruling, his Honour said:
"The true question, it seems to me, is whether there are exceptional circumstances which in the interests of justice justify the admission of the evidence. In this respect it is important to note that there is no indication by way of evidence from the accused man that the contents of the conversations are false, nor was it put to the officer in cross-examination that they were in any way false ... Inculpatory statements have been made on three occasions by the accused man in circumstances, leaving aside fairness for the moment, where it has not been asserted either by cross-examination or from evidence from him that there is anything untrue in relation to what was said."
84 His Honour went on to hold the evidence admissible because it was volunteered and initiated by the accused, it was in the context of a series of cautions having been given to him in the video-recorded interviews and he clearly wished to confide in the investigating officer. In his Honour's view it would be contrary to the interests of the community to refuse the prosecution the opportunity to lead that evidence.
85 In their joint judgment, the members of the Court of Criminal Appeal (Murray and Steytler JJ and Fitzgerald AJ) said about Ch LXA of the Code at [19] - [20]:
"19 However, Ch LXA of the Code will have achieved little, if anything, if no more is necessary to satisfy s 70D(2)(c) than apparently credible evidence from a police officer that admissions were made. When there is no reasonable excuse for there not being a videotape recording, it will not ordinarily be in the interests of justice to admit evidence of disputed admissions that are not recorded on videotape merely because a trial Judge considers that a police officer's evidence of the admissions is preferable to an accused person's denial. Unless courts resolutely promote the statutory policy to avoid disputes about alleged admissions, even when (or, perhaps, particularly when) crimes are serious, that policy will be steadily eroded to the detriment of the criminal justice system. The integrity of the criminal justice system is one of the fundamental 'interests of justice'.
20 Nonetheless, if evidence of admissions is so manifestly reliable that there is no real scope for a genuine dispute concerning the admissions despite the lack of a videotape recording, the admissions were fairly obtained and the lack of a videotape recording is the only real basis for objection, it might be in the interests of justice to admit the evidence. If so, the admission of the evidence in such circumstances would be consistent with the legislative intent."
86 The Court concluded (at [24]) that it was open to the trial Judge to conclude that Scantlebury's belief, as a result of statements by the appellant and his lawyer, that the appellant would not consent to his conversations with Scantlebury being video-taped, established "a reasonable excuse for there not being a recording on video-tape of the admission". Their Honours added that the four specified circumstances that constitute reasonable excuse in subs 4 of s 570D of the Code are not exhaustive and said:
"Even if a reasonable belief that an accused person will not consent to an interview being videotaped is not a reasonable excuse for not videotaping the interview, it is a matter of considerable importance in determining whether the interests of justice justify the admission of evidence of admissions made by the accused."
87 On 23 October 2003 the High Court refused special leave to appeal in this case on the ground there was no reasonable prospect of a successful appeal. On the same occasion, however, that Court granted special leave to appeal on the same issue in Coates v The Queen [2003] HCA (Trans 428).
88 That appeal is from the decision of the Court of Criminal Appeal in Hoy, Coates & Nichols v The Queen [2002] WASCA 275.
89 Coates and his co-accused had been convicted of the wilful murder of one Claire Garabedian by giving her a "hot shot" of heroin.
90 The appellant had given a long VROI on 7 October 1998. He claimed he was drunk and asleep at home at the relevant time and played no part in Garabedian's death. There was then a break in the interview. The police officers testified there was a short conversation off-camera in which the appellant expressed concern for his position and offered to do a deal. According to the police he still maintained he was still "maggoted" but his co-accused "went and did it". It was said there was then a further conversation with other police officers in which the appellant indicated he wanted to do a deal and would give evidence against his co-accused.
91 The trial Judge ruled that the statements made by the appellant to the detectives during the break in the VROI were capable of being construed as admissions against interest and as such were admissible and probative evidence, unless precluded by s 570D of the Code. On that question the trial Judge held there was a reasonable excuse for there being no video-tape and the admissions were therefore admissible. His Honour said that subs 4 contained definitions of what a reasonable excuse will include but is not all inclusive. The situation in which an accused person does not consent to the interview being video-taped was allied to the situation in that case because the break in the process of recording the interview was contrived and the statements were initiated and made by the appellant at that time. His Honour concluded that constituted a reasonable excuse for there not being a recording of the material on video-tape.
92 As Miller J (with whom Anderson and Wheeler JJ agreed) expressly recognised at ([143]), the statements of principle in Sell v The Queen (1995) 15 WAR 240 and Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996 had been made before the introduction of s 570D of the Code and that the section "clearly imposes a stricter statutory regime for the admissibility of off-video admissions than was previously the case ([144]).
"In the present case, it is the initiation by Coates himself of the off-video interview which is a critical factor in the determination of the admissibility of the admissions allegedly made by him. In my view, the learned trial Judge was quite correct in concluding that there was, within the meaning of s 570D(2)(b) of the Criminal Code, a reasonable excuse for the admissions not being recorded on video tape, namely that Coates did not want his statements recorded on video tape. According to the evidence of the officers he was anxious to speak off tape about the options that he might have if he was to implicate others. In my view, it is quite wrong to suggest that in these circumstances the admissions of an accused person or the admissions of a suspect are inadmissible by reason of the fact that they have not been videotaped."
94 It is this conclusion in respect of which the High Court has given special leave to appeal.
95 On 10 March 2004 the High Court delivered judgment in Kelly v The Queen [2004] HCA 12. As that case concerned the admissibility of statements made to police officers after a video-recorded interview had been completed, I had my Associate contact the DPP and the accused's solicitors, bringing the decision to their attention, and asking whether counsel wished to make any further submissions to me in light of it. I was subsequently advised that neither counsel wished to.
96 Although the Tasmanian legislation under consideration in Kelly was in substantially similar terms in some respects to s 570D of the Code, there were significant differences. The relevant Tasmanian provision was s 8 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) ("the Tasmanian Act"). That section then provided:
'confession or admission' means a confession or an admission -
(a) that was made by an accused person who, at the time when the confession or admission was made, was or ought reasonably to have been suspected by a police officer of having committed an offence; and
(b) that was made in the course of official questioning;
'official questioning' means questioning by a police officer in connection with the investigation of the commission or the possible commission of an offence;
'serious offence' means an indictable offence of such a nature that, if a person of or over the age of 18 years is charged with it, the indictable offence cannot be dealt with summarily without the consent of the accused person and, in the case of a person under the age of 18 years, includes any indictable offence for which the person has been detained.
(2) On the trial of an accused person for a serious offence, evidence of any confession or admission by the accused person is not admissible unless -
(a) there is available to the court a videotape of an interview with the accused person in the course of which the confession or admission was made; or
(b) if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why a videotape referred to in paragraph (a) could not be made, there is available to the court a videotape of an interview with the accused person about the making and terms of the confession or admission or the substance of the confession or admission in the course of which the accused person states that he or she made a confession or an admission in those terms or confirms the substance of the admission or confession; or
( c) the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why the videotape referred to in paragraphs (a) and (b) could not be made; or
(d) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.
(3) For the purposes of subsection (2), 'reasonable explanation' includes but is not limited to the following -
(a) the confession or admission was made when it was not practicable to videotape it;
(b) equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person;
(c) the accused person did not consent to the interview being videotaped;
(d) the equipment used to videotape the interview malfunctioned."
97 In Kelly the appellant and one Marlow had been convicted of the murder of a police informant. The victim had been shot with a shotgun. The appellant then used an excavator to bury the body on a building site.
98 In November 1999 the appellant told police he and Marlow had murdered the victim. In March 2000, during a video record of interview with the police, although he accepted he had confessed in that way, the appellant said the confession was false and offered certain explanations for having made it. About 30 minutes to an hour after the video interview had concluded and no further questions had been asked by the police officers, the appellant made what the High Court described as "the impugned statement". The circumstances of that are described at [14]:
"The appellant then made some telephone calls. He was charged, fingerprinted and photographed. It was then proposed that he be taken to the Launceston General Hospital for the purpose of obtaining samples of blood and hair. Just before the appellant and accompanying officers got into the car, the appellant made the impugned statement. He said, according to Detective Sergeant Lopes and Detective Pretyman:
'Sorry about the interview - no hard feelings, I was just playing the game. I suppose I shouldn't have said that, I suppose you will make notes of that as well.'
The police officers did not respond to this statement. They made no note of it. They also did not attempt to return the appellant to the interview room with a view to making a video-recording of the appellant repeating what he had said so as to attract s 8(2) of the Act."
99 At trial the appellant's objection to the admissibility of the impugned statement was overruled on the ground it was not made in the course of official questioning. A majority of the Court of Criminal Appeal agreed. Slicer J disagreed, but joined in the order dismissing the appeal on the ground no substantial miscarriage of justice had actually occurred. In the High Court the single material issue was whether the impugned statement was made "in the course of official questioning". There was no argument advanced at any stage that any of the possible exceptions referred to in s 8(2)(b) - (d) of the Tasmanian Act applied.
100 In their joint judgment, Gleeson CJ, Hayne and Heydon JJ canvassed at some length the history and forensic imperatives of the various Australian statutory schemes governing the admissibility of admissions or confessions made to police and the contemporary requirements for video-tape evidence as a condition of admissibility.
101 At [30] - [37] their Honours described some of the possible approaches to the problem. They noted (at [33]) the regime introduced into Western Australia by s 570D of the Code reflected an approach which requires no confession to a police officer made by a person who is suspected on reasonable grounds of having committed an offence be admissible unless it is video-taped. On this approach it does not matter whether or not the police officer triggered the confession by a question, for although a non-video-recorded confession could be admitted if there were a "reasonable excuse" for its not having been video-recorded and three of the four instances of a reasonable excuse referred to at "interview" nothing in the legislation requires that the confession be an explicit response to particular questions.
102 Returning to the particular legislation before the Court, their Honours pointed out that the Tasmanian Act did not adopt the technique used in, inter alia, Western Australia since 1992, of imposing a duty to video-record independently of the existence of police questioning.
103 All members of the Court agreed that s 8(1)(b) of the Tasmanian Act should be construed so as to promote the purpose or object of the Act. Where they differed in the result was in the answer to the second of the two questions next raised. The first question was what was the purpose of the Act and the second was what was the construction which promoted that purpose or object.
104 The majority held ([42]) the answer to the first question was that purpose or object was to overcome perceived problems with the so-called police "verbal" which was dealt with by the High Court in McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468 They included the possibility of police fabrication and the ease with which experienced police officers can effectuate it, the frequent lack of reliable corroboration of the making of a statement and the practical burden on an accused person seeking to create a reasonable doubt about the police evidence. However, their Honours went on to point out that recognition of that purpose did not compel any particular construction of s 8 - what the correct construction was must depend upon the particular words used.
105 In that regard, their Honours referred to the judgment of Slicer J, who had given s 8(1) the widest possible construction, holding the expression "in the course of official questioning" as encompassing all "events ... occurring whilst a person is in custody" (Marlow & Kelly [2001] TASSC 146; (2001) 129 A Crim R 51 at [148]). His Honour had arrived at that conclusion by analogy with the English authorities on the Police and Criminal Evidence Act 1984 (UK), Code C.
106 The reasoning underlying the English authorities was articulated in Bryce (1992) 96 Cr App R 320 at 326:
"If this interview was correctly admitted, the effect would be to set at nought the requirements of the Police and Criminal Evidence Act 1984 and the code in regard to interviews. One of the main purposes of the code is to eliminate the possibility of an interview being concocted or of a true interview being falsely alleged to have been concocted. If it were permissible for an officer simply to assert that, after a properly conducted interview produced a nil return, the suspect confessed off the record and for the confession to be admitted, then the safeguards of the code could readily be bypassed."
107 As to that, the majority in Kelly said ([51] - [53]):
"51 However, the English cases do not offer a sound basis for the appellant's construction. Parliament could have chosen to adopt a wider solution to the problem than that which appears in s 8 of the Act, but it is not open to the courts of this country to ignore or alter the meaning of s 8 in order to achieve what they might think is a better solution by creating safeguards which Parliament itself chose not to create. In numerous respects the legislature contemplated in s 8 that confessions or admissions could be admitted without being video-recorded by reason of matters resting wholly or partly on the oral uncorroborated evidence of police officers. One such matter is whether its maker was suspected or ought reasonably to have been suspected: s 8(1) of the Act. Another group of matters is whether it was practicable not to video-tape the confession or admission, or whether equipment was unobtainable, or whether the maker did not consent to being video-taped, or whether the equipment malfunctioned: s 8(3) of the Act. Another matter is whether there are exceptional circumstances: s 8(2)(d) of the Act. And yet another relates to issues of when official questioning started and ended, and what happened outside that period. To identify the possibility of uncorroborated police evidence being admitted on these questions is not to identify absurd loopholes to be closed at any cost to the actual language employed. The legislature was attacking part of the problem of uncorroborated police evidence. Minds can differ on whether it should have attacked more of the problem. The question is: what part did it in fact attack? That question is not to be answered by presuming that all parts were attacked.
52 The expression 'in the course of official questioning' in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s 8(2)(a) of the Act relatively narrow in the sense that it does not provide that video-recording is a condition for admissibility of all confessions made by persons who are suspected or ought reasonably to have been suspected of having committed a crime: video-recording is only a condition for admissibility of those made 'in the course of official questioning'. It renders s 8(2)(a) of the Act relatively broad in the sense that it does provide that video-recording is a condition for admissibility of confessions made 'in the course of official questioning', without any limitation turning on whether the maker of the confession is in custody or under arrest. The requirement that confessions be video-recorded extends to confessions made anywhere so long as they are made 'in the course of official questioning' - whether in police stations, in police cars, at the scene of a crime, or during informal encounters. The difficulty of video-recording confessions in particular circumstances is met by ss 8(2)(b)-(d) and (3)(a)-(d) of the Act. But whether the expression 'in the course of official questioning' is viewed as making s 8(2)(a) narrow or broad, it stipulates a relatively clear criterion, suitable for application by police officers, whose usual procedures are formal and methodical.
53 In this matter 'the course of official questioning' ended when Detective Sergeant Lopes ceased to ask questions and said at 9.17pm: '[W]e'll conclude the interview'. Other activities of the appellant not related to official questioning and other police procedures not involving questioning then took place. No further question was asked which triggered the impugned statement. To treat the impugned statement as having been made in the course of official questioning would be to ignore the statutory language."
108 McHugh J held the evidence of the impugned statement was not admissible. That finding turned on his Honour's conclusion that it was made in connection with the questioning of the appellant in connection with the investigation of the murder and that for the purpose of s 8, a confession or admission so made was made "in the course of official questioning".
109 His Honour agreed (at [83]) with the majority that if the words "made in the course of official questioning" were read with a temporal connotation and in isolation, without regard to the policy or purpose of the legislation, the official questioning ended when the recorded interview ended. However the issue was not to read the meaning of the phrase in isolation but rather with the aid provided by the definitions of "confession or admission" and "official questioning" in s 8(1), by the evident policy of s 8 and by the mischief that it sought to overcome.
110 McHugh J outlined the history of forensic challenges to confessional evidence and the need for particular legislative response. At [96] - [97] his Honour said:
"96 Acting on the recommendations and findings of various Commissions and Inquiries, all Australian legislatures have enacted legislation that seeks to protect the rights of accused persons during a period when their rights are vulnerable by reason of the mistaken recollection or lies of police officers. The enactments of the various legislatures are broadly similar in principle although they differ in detail. In general, they identify the period of vulnerability as commencing with the time when the facts raise a suspicion of the accused's guilt. In most jurisdictions, the period is thereafter open-ended. The enactments recognise that miscarriages of justice may occur when there is no mechanical record confirming an allegation by police officers that the accused has confessed to a crime or made a damaging admission after he or she was or ought reasonably to have been seen as a suspect. The evident policy of the enactments is that it is against the interests of justice to admit evidence of such confessions or admissions unless there is a mechanical record of such confession or admission or an acknowledgment of it, or in some jurisdictions that exceptional circumstances justify the admission of the evidence.
97 Given the mischief to which the Australian legislatures have directed their attention and the policy behind the enactments, it would not be defensible to make the admissibility of confessions or admissions made during the period of vulnerability turn upon fine verbal distinctions between the legislation of particular jurisdictions. Rather, courts construing the various legislative enactments should construe them in the same broad way that Dixon J in Little v The Commonwealth thought that protective provisions, such as time limitation provisions, should be construed. As far as the statutory language will permit, the legislation of the various jurisdictions should be interpreted liberally and uniformly to give effect to what is a national policy behind this class of legislation. To so construe the legislation of a particular jurisdiction in this way is not to reject the will of the legislature of that jurisdiction. It is merely another application of the dictum of Dixon CJ that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.' It also accords with the purposive theory of statutory construction." (Footnotes omitted).
111 His Honour agreed with the majority that purposive construction is the modern approach to statutory interpretation, however his Honour went on to say at ([98]) that legislative enactments should be construed so as to give effect to their purpose even if on occasion this may require a "strained construction" to be placed on the legislation.
"104 The mischief at which s 8 is aimed is clear: the attack on the integrity of the administration of justice by false or unreliable confessions or admissions allegedly made by suspects during a police investigation of a serious criminal offence. It should be interpreted, so far as possible, to overcome that mischief. The prohibition in the section may not be confined to oral confessions. Arguably, it includes written as well as oral confessions unless 'in the course of official questioning impliedly excludes a written confession or admission. In any event, however, the section's effect on the mischief that it was intended to overcome would be seriously undermined if 'in the course of official questioning' were defined by the clock and the officer's testimony as to the times when questioning commenced and ended. To construe s 8(2) in the way that the learned judges did in the Supreme Court of Tasmania is to undermine its purpose and to fail to deal effectively with the mischief at which it is aimed. Such an interpretation would also make the section's operation hostage to the oral evidence of the police officers as to when the questioning commenced and ended.
105 When the definitions in s 8(1) are read into s 8(2), that sub-section shows that, subject to specified exceptions, evidence of a confession or admission is not admissible if it was made in the course of questioning by a police officer in connection with the investigation of the commission or possible commission of a serious offence in circumstances where the person was or ought reasonably to have been suspected by a police officer of having committed an offence. Given the purpose of the section and the mischief that it was designed to overcome, I see no difficulty in reading s 8(2), as defined, as applying to any confession or admission that is connected to questioning or proposed questioning by a police officer in connection with the investigation of a serious offence. ..."
113 On that basis the impugned evidence should have been rejected.
114 Kirby J came to the same conclusion. His Honour made the cautionary observation (at [130]) that because the legislation varies in significant ways in different parts of Australia, it is essential to determine contested issues of admissibility by reference to the particular provision concerned. He pointed out that although he accepted the force of the majority's reasoning, there were arguments both ways and in the end he had concluded, as had McHugh J and Slicer J, that the course "in the course of official questioning" extended to circumstances such as those in which the impugned statement was made. The "starting point of analysis" was that the statement would appear to fall within a legislative provision addressed generally to remedy contested and unconfirmed statements to police officers by accused suspects whilst detained by them ([149]).
115 At [161] Kirby J made some observations which resonate with the instant case:
"Confronting the appellant with the impugned statement on video recording would not have been a difficult task in the circumstances of the present case. When the impugned statement was made, the police detaining the appellant were still in the vicinity of the police building, only minutes away from the video recorder. It would have been a small inconvenience to return the appellant to the videotape recording facility to confront him with the accusation of his alleged additional statement. Then, the jury would have had the benefit of a prompt and contemporaneous assertion by police of what the appellant had said and a recording of the appellant's immediate response."
and concluded that the approach stated in the joint reasons, that "official questioning" concluded with the statement to that effect by the interrogating police officer, the switching off of the video recorder and departure from the police recording room, effectively left it to the police to mark the boundaries of the obligations imposed upon them by Parliament. Such a construction was unacceptable given that the object of the Act was to put checks on the conduct of police officers.
116 Notwithstanding the views expressed about s 8 of the Tasmanian Act, each member of the Bench in the High Court was of the view that the case against the appellant was so overwhelming that there was no substantial miscarriage of justice and the appeal should be dismissed on application of the proviso.
117 Without attempting to be at all exhaustive, some principles apposite to the present case may be distilled from the authorities referred to above:
1. Section 570D clearly implies a stricter statutory regime for the admissibility of off-video admissions than was previously the case.
2. Section 570D, as with equivalent legislation in other Australian jurisdictions, is to be given a purposive construction - that is, is to be construed so as to promote the purpose or object of the legislation.
3. The purpose or object of s 570D was to overcome perceived problems with the so-called police "verbal", including the possibility of police fabrication, the ease with which experienced police officers can effectuate it, the frequent lack of reliable corroboration of the making of a statement and the practical burden on an accused seeking to create a reasonable doubt about the police evidence.
4. The recognition of that purpose does not compel any particular construction of the section - that must still depend upon the particular words used.
5. The section contemplates that confessions or admissions may be admitted without being video-recorded, in circumstances resting wholly or partly on the uncorroborated evidence of police officers - including (but not being limited to) the circumstances adumbrated in subs 2(b) and (c), subs (3) and subs (4)(a)-(d) inclusive.
6. The question is, what part of the problem of uncorroborated police evidence of admissions or confessions by an accused does the particular statutory provision attack (and, more pertinently, is the confessional evidence here within the scope of the legislative provision excluding such evidence?)
118 The State submits first that the evidence of the admissions (which term I use here to compendiously describe what the police officers testified the accused said to them in the police station after the video-recorder was shut off and up to and including the events at the location where the gun as found) is admissible because the appellant did not consent to the interview being video-taped (s 570D(4)(c)).
119 The evidence of the police officers about this was that they assumed he would not consent to say anything on the video-tape because he had already declined to speak to them in those circumstances.
120 The short point to be made about this is that they did not ask him.
121 The relevant conversation about the handgun (whichever account about the content of it might be accepted) took place in the video interview room itself, immediately after Detective Millar had turned off the video-recorder and returned to the room. There was absolutely no reason whatsoever why the detectives could not have turned the video-recorder on again and asked the accused to confirm what he had told them about the gun. It is true that he had said on video that he did not wish to say anything, but on the detectives' own evidence, after the video was turned off he did in fact volunteer information. It was common ground that they did not ask him to say that on video. Their evidence is that they assumed he would not. Their assumption was not a refusal on his part to consent to a resumption of the VROI for the purpose of confirming what he had told them about the gun. The State has not demonstrated a reasonable excuse for there not being a video-recording of the admissions within the terms of subs (4)(c).
122 Ms Chong relies on the alternative submission that if there was no reasonable excuse for not video-recording the admission, the evidence should still be admitted because there are exceptional circumstances which, in the interests of justice, justify its admission (s 570D(2)(c)).
123 In Stapleton the learned trial Judge had held the evidence admissible because it had been volunteered and initiated by the appellant, it was in the context of a series of cautions having already been given to him and he clearly wished to confide in the investigating officer. It was that conclusion to which the members of the Court of Criminal Appeal were referring in the passage I have set out at [85] above. At [24] - [25] the Court said:
"24 There has been some discussion of s 570D in the reported cases. The section and, indeed, the whole of Ch LXA was inserted in the Criminal Code by the Acts Amendment (Jurisdiction & Criminal Procedure) Act 1992. These particular provisions were proclaimed to operate only as from 4 November 1996 (Government Gazette, 25 October 1996, p 5361). But, perhaps wisely, very few of the decided cases have essayed any generally applicable interpretation, particularly of the provisions of s 570D(2) and s 570D(4). To a considerable degree, the effective and proper operation of the provision depends upon the judgment made against the background of the particular factual circumstances of the case as the trial Judge finds them to be. That is so in respect of the judgment whether there is a reasonable excuse for there not being a recording on videotape of the admission (guidance as to the meaning of the concept, but not an exclusive definition of the term "reasonable excuse", being provided by subs (4)). And that is certainly so with respect to the decision whether the circumstances of the case are sufficiently exceptional to justify the admission of the evidence in the interests of justice, even though there is not a videotape record of it and even though a reasonable excuse for that failure has not been established.
25 Because, as we would hold, it was open to the trial Judge in the circumstances of this case to conclude that there was a reasonable excuse for the failure to record the appellant's statements on videotape, it is strictly unnecessary for us, as it was for his Honour the trial Judge, to consider whether the circumstances of the case, to which we have adverted, were sufficiently exceptional to justify the admission of the evidence in the interests of justice. We think, however, that the decision of his Honour was fairly supportable on that ground also. We note that, as argued, his Honour's judgment about the lack of relevant unfairness sufficient to warrant the exclusion of the evidence by the application of the ordinary common law rules, is not called into question."
124 The critical feature of the point in that case was that when the ruling was made there had been no overt indication that Scantlebury's evidence was challenged. In this case, the accused does directly challenge the account being given by the detectives. There is therefore a genuine dispute about the admissions sought to be adduced. It cannot be said the evidence of them is so "manifestly reliable" that it would be in the interests of justice to admit the evidence - even if that would otherwise be sufficient, as to which I need presently express no view. That aspect of the circumstances which is clearly true, and is accepted as such by the accused and the State, is that there was a handgun in the location to which the accused took the detectives. But that does not go to resolve the question of admissibility because that fact is consistent with both what the accused says about it being some other gun which had no connection with him and with what the detectives say he admitted, namely that it was the handgun the accused said he used in the commission of the offences alleged.
125 In terms of credibility, both versions carry their own difficulties. On the police officers' account, it would seem strange that if the gun found had been used by the accused in the commission of the offences, he would have responded to their concerns about the danger of a real firearm coming into the hands of a child or other person. He would have known it was an imitation firearm. On the other hand, it would have been an extraordinary coincidence if the accused just happened to know where a firearm, similar to that he was said to have used, was to be found because, for no particular reason, someone had happened to tell him that person had cached it, and where. However, given the fact there is a dispute about the evidence of the admissions said to have been made, the situation is one which falls clearly within the mischief the legislation was intended to overcome.
126 I am not persuaded there are exceptional circumstances which would justify the admission of the evidence in the interests of justice.
127 For the above reasons I conclude the evidence of the alleged admissions, including the finding of the handgun, fails to comply with s 570D of the Code and so is not admissible.
128 The State seeks to lead evidence of 11 recorded telephone calls made by the accused whilst on remand in Hakea prison, to various persons outside the prison.
129 It is submitted that the recorded calls show a course of conduct by the accused to procure witnesses to give false evidence at his trial, admissions by him of his attempts to suborn prosecution witnesses and attempts to procure documentary evidence such as photographs of a deceased person and admissions that he intends to lie in his evidence.
130 Ms Chong submits that all the recorded calls have to be considered in total as a series and not in isolation and that although there are some parts of individual calls which may have marginal relevance, each call has to be considered as a whole (albeit with irrelevant matters deleted), so that the relevant and probative parts are put in context.
131 Put shortly, the State submits that the calls collectively constitute circumstantial evidence from which an adverse inference of guilt may be drawn. Mr Kitto, on the other hand, submits that the calls do not have the character the State seeks to cast upon them and evidence of them is inadmissible because there are rational inferences other than guilt, to which they give rise.
132 In principle, evidence of attempts to suborn witnesses, to present false evidence, or to intimidate witnesses may be admitted as evidence of conduct from which a consciousness of guilt may be inferred (R v Lizzotte (1951) 99 CCC 113; R v Senger (1955) 112 CCC 351). It falls under the same evidentiary principle as evidence of flight or lies. The test of admissibility is whether it is evidence from which the jury might infer a consciousness on the part of the accused, of guilt of the particular offence.
133 It is a species of circumstantial evidence and it is preferable to explain it to a jury in that right way rather than to use the expression "consciousness of guilt" (R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479 per Winneke P at [18]; R v Franklin [2001] VSCA 79; [2001] 3 VR 9; 119 A Crim 223 at [118]).
134 In R v Liddy [2002] SASC 19; (2002) 81 SASR 22, in dealing with a ground of appeal going to the use of evidence that the appellant had attempted to bribe witnesses, Mullighan J (with whom Williams and Gray JJ generally agreed) in the South Australian Court of Criminal Appeal, gave the following explanation of the principles underlying such evidence (at [242]-[243]):
"242 It is unnecessary to set out the circumstances in which a deliberate lie told by an accused person may amount to positive evidence of guilt as opposed to adversely reflecting upon the accused's credibility. The telling of relevant lies is a piece of circumstantial evidence from which an adverse inference of guilt may be drawn if the lie is told out of a consciousness of guilt and no other rational inference may be drawn.
243 There are other types of conduct of an accused person which may also constitute circumstantial evidence from which an adverse inference of guilt may be made subject to the same proviso: R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479. Examples are given in Lunn, Criminal Law in South Australia par 120.5 and include absconding while on bail, flight and assuming a false name. The hiding of a weapon may amount to such conduct. Another example given is suborning a prosecution witness. That type of conduct was considered in R v Watt (1905) 20 Cox CC 852. In that case Phillimore J said that the principle was well established. He said (at 853):
'It is this, that the conduct in the litigation of a party to it, if it is such as to lead to the reasonable inference that he disbelieves in his own case, may be proved and used as evidence against him. The principle is well stated by Sir Alfred Wills ... in his edition of his father's work upon circumstantial evidence:
"Amongst the most forcible of presumptive indications may be mentioned all attempts to pollute or disturb the current of truth and justice or to prevent a fair and impartial trial, by endeavours to intimidate, suborn, bribe, or otherwise tamper with the prosecutor, or the witnesses, or the officers or ministers of justice, the concealment, suppression, destruction, or alteration of any article of real evidence; any of which acts clearly brought home to the prisoner, or his agents, are of a more prejudicial effect, as denoting on his part a consciousness of guilt, and a desire to evade the pressure of facts tending to establish it".'
'Evidence must be given to connect the litigant with the witness as a suborner of his perjury, but if such evidence is given the presumption is strong but not conclusive.'
This type of conduct has been treated as an admission by conduct: R v Flanigan (1997) 190 LSJS 499 at 504 per Cox J. Conduct of this nature is not confined to suborning a witness once a trial has commenced. The conduct may occur before the trial just as an inference that a lie was told due to a consciousness of guilt may be drawn from a lie told before the commencement of litigation."
135 The correct approach to circumstantial evidence of after-the-fact conduct was explained by Doyle CJ in Power [1996] SASC 5653; (1996) 87 A Crim R 407 at 409:
"In my opinion, the evidence was admissible. Taken as a whole it was evidence upon which a jury might conclude that the conduct of the appellants manifested a consciousness of guilt. There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all interrelated) is admissible as showing a consciousness of guilt: see, eg, Melrose [1989] 1 Qd R 572; (1987) 30 A Crim R 332. It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but in my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected. In my opinion, the ruling by White J, reported in Bridgman (1980) 24 SASR 278, is not to be taken as meaning that evidence of flight is inadmissible simply because a credible explanation is advanced. In my opinion, the approach to be taken is that indicated by Shepherdson J in Melrose (at 579; 338-339) (assuming that the evidence is not intractably neutral):
'I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person's flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference.'
In my opinion, the judge rightly admitted the evidence for the purpose identified by the prosecution."
136 At this preliminary stage it is not for me to make a determination whether the inference of guilt is the only inference reasonably open on the evidence. That would be a matter for the jury if the evidence is admitted. The question for me at this stage is whether, taking it at its highest for the prosecution, the evidence could give rise to that inference. If it could, it is admissible. It would then be necessary to consider whether it should be excluded in the exercise of discretion.
137 I have read the transcripts of the taped calls. Given the conclusions to which I have come about their admissibility and the fact the trial is yet to begin, it is inappropriate for me to give detailed reasons for my conclusions.
138 I note also that the State has indicated that if the evidence is held to be admissible, there would be some editing required to remove extraneous or unfairly prejudicial material.
(1) Recording 349456 (17.30 hr, 4 December 2003)
139 There is an inference open from the content of this conversation that the accused was telling a man by the name of Lee that he wanted to organise a woman ("anyone") to give false evidence to say she was in a sexual relationship with the deceased Paul Joseph and she telephoned the accused and asked him to collect money owed to Joseph.
140 Evidence of this conversation is admissible. There is no relevant unfairness nor reason of public policy why it should be excluded in discretion. Nor do I accept Mr Kitto's submission that the evidence should go to the jury only if the accused calls evidence from a third party to the effect that they asked him to collect the debt. The evidence is capable of being probative of guilt and so not only may, but should, be led in chief, if at all.
(2) Recording 377845 (12.41 hr, 17 December 2003)
141 A jury could take part of this conversation as the accused asking his mother whether she had rung the man Lee about the woman to give evidence as discussed in call 349456, and threatening the woman with violence to give the evidence he wants.
142 There is also some discussion about the accused having the right place but the wrong name.
143 These parts of the conversation are admissible as circumstantial evidence tending to prove guilt and as an admission, respectively.
(3) Recording 382792 (15.43 hr, 19 December 2003)
144 The only part of this conversation which is capable of giving rise to an inference of guilt is that in which the accused tells the other male speaker to make sure "Matt" is doing the right thing about a car and a gun. Taken with other telephone conversations this evidence does have that character from which a jury could conclude the accused was talking about having arranged for "Matt" to give untruthful evidence on his behalf.
145 It is admissible and there is no discretionary reason to exclude it, although the conversation as a whole will require substantial editing.
(4) Recording 385209 (16.38 hr, 20 December 2003)
146 The accused speaks to Lee about the photo of the deceased which he had previously asked Lee to obtain. He was told it could not be done because the deceased had a different name and that "Rodney" got the name wrong. The accused states that "... could blow my case sky high ..." Lee tells the accused the "three boys" he went to see were not right. The accused says all he needs is "Janine". The accused expresses concern that his witnesses may be shown a photo of a man different to the name of the deceased he was given. There was a discussion about getting a photo of the correct person.
147 From the discussion about a female coming from Queensland a jury could conclude the accused was talking about having arranged for her to come to say she, and not Lee, was driving the vehicle. The male speaker tells the accused that the first name was right but the last name was wrong and there is discussion about that.
148 The accused also expresses concern about "Janine" and talks about why he cannot "prep" her into a case.
149 This evidence is admissible and there is no discretionary basis for its exclusion.
(5) Recording 385571 (18.01 hr, 20 December 2003)
150 In this call the accused tells his brother it is important that he speak to his mother that night about his court case. He then does so. He tells her that the three people he went to see were the wrong people, that he went to the wrong house and it was the wrong deceased. He tells his mother that the debt had to be collected, that someone is getting a photo for him, that there is still a deceased person but it is a different deceased. He says that although the three persons he saw were wrong, he will stick with what they have got. There were discussions about having the wrong deceased and the photo being different. He tells his mother that he has got someone else to take Janine's place and all he needs is the "picture". The accused says he does not know the new name as he was not told over the phone but Lee would tell his mother. She says they could work out a code but he says that is alright, as long as she knows, she can tell him at court.
151 The evidence is admissible as tending to confirm the allegations that he repeatedly told the three complainants at the house that the debt had to be collected. The other portions to which I have referred are admissible as being capable of showing his attempt to fabricate a false case. I would not exclude the evidence in the exercise of discretion.
(6) Recording 386948 (16.18 hr, 21 December 2003)
152 In this conversation the accused again speaks to Lee who tells him there was no problem getting the photo and that the person's name was Stuart Marshall. The accused asks if Stuart Marshall had a wife and when told "no" he said it makes things even easier because there could be no wife who could give evidence.
153 The accused tells Lee that he had organised people to talk to the complainants to persuade them to drop the charges and that once they took it to court it would be a "a new ball game". He then says he has got all his evidence on them and would run them down in court as bad witnesses, "so they're going to get made to look like f.... dickheads" when they should just forget about it."
154 In the context of the calls as a whole, a jury would be entitled to take the view the accused was talking about his attempts to arrange false evidence and suborn witnesses. They would be further entitled to infer the reason he had been doing so was because he was guilty of the offences charged.
(7) Recording 386969 (16.24 hr, 21 December 2003)
155 This is another conversation between the accused and his mother. He tells his mother that the bad news has turned good and he has a photo and that the person does not have a wife. He tells her she has to get the name of the deceased because when he gives evidence he intends to say the police do not know what they are talking about because they do not even have the correct name of the deceased. The conversation can also be taken as indicating his intention to show the complainants to be lying because they will repeatedly say he was collecting a debt for a deceased person called "Paul Joseph" but he will be able to show the deceased was a different person.
156 The conversation is admissible to this extent, but in my view the remainder of it, in which the accused discusses the conduct of his case generally and his expectations of the way in which the complainants will give their evidence and what might happen, is not admissible.
(8) Recording 392024 (15.36 hr, 23 December 2003)
157 Ms Chong says the State does not intend to lead evidence of this call. I do not therefore need to consider it.
(9) Recording 400858 (17.25 hr, 26 December 2003)
158 Once again this is a conversation which begins between the accused and his brother, none of which appears to bear on this case, and then continues into a conversation between the accused and his mother.
159 Much of this conversation is about speaking the Indonesian language and other things which have no apparent bearing on the case. The State seeks to lead only a small portion of the conversation which the accused tells his mother to "Bring that lady up" and that "she can be trusted - she's a very trustworthy person". It is said this call has to be considered in conjunction with recording 402870 which took place the following day.
160 The very small part of this conversation which the State says has any relevance is so limited and the relevance is so slight as in my view not sufficient to justify its admission.
161 On behalf of the State it is submitted that this is an on-going discussion showing attempts by the accused to get witnesses and evidence to shore up his defence and indicating a desire to evade the pressures of prosecution facts tending to establish his guilt.
162 In my view the content of this tape does not demonstrate sufficient relevance, whether by way of express or implied admissions or as being capable of evidencing attempts to fabricate evidence or suborn witnesses, to be relevant. In any event, even were I persuaded there was some degree of relevance in some of the content, it would seem to me to be very slight and to be substantially outweighed by the potentially unfairly prejudicial effect of it.
163 I would hold the evidence of this telephone conversation inadmissible, or alternatively would exclude it in the exercise of my discretion.
(11) Recording 406188 (12.56 hr, 29 December 2003)
164 The accused asks his mother if she has made any calls and to whom. She says she has called "Nat" and arranged to see her. She tells him she has telephoned "Mick" and arranged to pick up something.
165 The accused thanks his mother for making the phone calls for him and asks her to tell "Nat something". There is a discussion about needing to be careful about "Nat" because she is "rough".
166 The accused's mother tells him she is going to Nat's house and she has all the information for Nat who had "already mentioned things like the photo etc". The accused says he has got the photo and asks his mother to "do it professionally" when she shows the photo to Nat.
167 The accused asks his mother to telephone his lawyer to ask whether it can come back on her because she is worried "... if they'll sting her". The accused asked his mother to tell his lawyer what Nat is going to say and seek his advice. His mother tells him she has to talk to Nat first about all the details before she phones the lawyer so that if the lawyer rings her, she knows everything.
168 Most of this is capable of being accepted by the jury as showing ongoing attempts by the accused to lie and to get witnesses to lie for him. Again this evidence is admissible and I would not exclude it in the exercise of my discretion.
169 As with most, if not all, of the foregoing conversations, this one would require careful editing.
(12) Recording 407048 (16.30 hr, 29 December 2003)
170 The accused tells his mother they have to sort out Melissa and his mother undertakes to call her. They talk about Melissa's arrival. The accused expresses frustration with his lawyer wanting to get statements from witnesses the accused mentions to him.
171 The accused says the debt he was collecting was not for "Paul Joseph" and with the right name he will be able to act surprised. They discuss how he is going to answer when cross-examined and what his witnesses will say. He will say Nat did not ask him to go around to the house and be violent.
172 His mother says she thinks Matt will be excellent but expresses concern about others. The accused says "DK" is alright, especially now because he sent him the papers about the imitation firearm. He said he did nothing so he will not even get a fine.
173 Considered in the context of the calls as a whole, these particular parts of the conversation are capable of supporting the inference the accused was attempting to lie and get witnesses to lie for him.
174 Satisfactorily edited, the evidence would be admissible and I would not exclude it in the exercise of my discretion.
(13) Recording 409631 (17.44 hr, 30 December 2003)
175 The State does not intend to lead evidence of this conversation.
176 Notwithstanding my rulings as expressed above, and as I have indicated, careful editing will be required before the evidence could be led before the jury at trial. That will require resolution between counsel at the earliest opportunity, or if that is not achieved, then it would be necessary for the matter to be re-listed so that any disputes about the editing which ought to be done can be determined by the court.
The State of Western Australia
Yerkovich [2004] WASC 62
(1995) 15 WAR 240
(1991) 171 CLR 468
(2002) 81 SASR 22
(1980) 24 SASR 278