R v Godfrey (No 4) [2023] NSWSC 1315

Supreme Court New South Wales

Medium Neutral Citation: R v Godfrey (No 4) [2023] NSWSC 1315 Hearing dates: 29 March 2023 Date of orders: 29 March 2023 Decision date: 29 March 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: The tender of the evidence objected to by the accused is rejected. Catchwords: CRIMINAL PROCEDURE — Admissions by suspects — where admission took place in the course of official questioning by police – whether reasonable excuse for failure to record the admission – no reasonable excuse made out – tender of evidence rejected Legislation Cited: Criminal Procedure Act 1986 (NSW), s 281 Category: Procedural rulings Parties: Rex Connor Norman Godfrey Representation: Counsel: M Hay (Rex) M W Smith (Accused)

Solicitors: Office of the Director of Public Prosecutions (Rex) Grover Law (Accused) File Number(s): 2021/93122 Publication restriction: None

REVISED EX TEMPORE Judgment 1. The next witness is Zinsser Gan. Constable Gan was the Custody Assistant of the Day Street Police Station when the accused was brought into the Police Station. Constable Gan prepared a statement dated 11 April 2021. The accused objects to at least part of Constable Gan's statement, as follows: "Whilst Godfrey was in the dock he continued to yell. He said: 'Why am I here, I didn't do anything wrong? He attacked me first, and I put him in a rear naked choke'. I said: 'Where did you learn that?' He said: 'I've trained four years in Brazilian jiu-jitsu'. I said: 'What belt are you?' He said: 'Blue'." 1. The parties agree that s 281 of the Criminal Procedure Act 1986 (NSW) ('the Act') applies. Section 281 is in the following terms: 281 Admissions by suspects (1) This section applies to an admission— (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless— (a) there is available to the court— (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section— investigating official means— (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. reasonable excuse includes— (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. tape recording includes— (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording. 1. Both parties agree that subss 281(1)(a), (b) and (c) of the Act are satisfied. That is, that the portion of Constable Gan's statement to which I have just referred contained an admission by the accused who, at the time when the admission was made, was or could have reasonably been suspected by an investigating official of having committed an offence, and which was made in the course of official questioning, and which relates to an indictable offence. 2. The issue between the parties relates to s 281(2). That is, the admission was made in the course of official questioning, which was not the subject of a tape recording. As such, having regard to s 281(2), evidence of the admission is not admissible unless either ss (2)(a)(i) or (2)(a)(ii) or 2(b) of the Act are satisfied. 3. Mr Smith on behalf of the accused says that the Crown has not established that there was a reasonable excuse as to why there was no tape recording, either at the time of the official questioning (that is, when the admission was made) or having regard to the terms of the section at some later time; that is, during the ERISP interview (in the sense that the issue was not raised during the ERISP interview, even though the ERISP interview took place many hours after the admission is said to have been made). 4. I heard evidence from Constable Gan on the voir dire. Although the Crown accepts that the admission was made in the course of official questioning, it seems that Constable Gan had a different view as to what was happening when the admission was made. He was initially asked why he did not have a body worn camera on at the time. Constable Gan explained that at Day Street Police Station, they do not wear body worn cameras in the custody section of the station. He did not say that he could not have obtained a body worn camera, or that none was available at the time, but rather, he simply said the practice was not to wear them. 5. When asked how it came to be that the accused said the words which are now objected to, Constable Gan said that he did not think it was official questioning, but that it was merely a conversation. 6. Further, he initially said that he was not aware of the nature of the offending which brought the accused into custody, or what had happened. However, on cross-examination by Mr Smith, he accepted that he had made a "specific note" of the relevant part objected to in his police notebook at some time towards the end of his shift, or approximate to when the admission was made. 7. Of course, Constable Gan also referred in his police notebook to other things said by the accused. He accepted in cross-examination that he must have considered that the words constituting the admission could be relevant. He was directed to the part where the accused said, "he attacked me first, and I put him in a rear naked choke". Constable Gan accepted that he knew that could be relevant. 8. The Crown emphasised that whilst it had accepted that the admission was made in the course of official questioning, Constable Gan took a different view, and that belief forms a reasonable excuse as to why the admission was not recorded. That is, the Crown submitted that Constable Gan believed it was merely a conversation and, in effect, that the particular words spoken by the accused were not responsive to any questions asked by Constable Gan. 9. I have some difficulty with Constable Gan's suggestion that it was merely part of a conversation with the accused. In paragraph 4 of his statement admitted on the voir dire, he said, "Connor remained in Dock #2 whilst I began processing into the custody system. I asked him several questions." 10. Constable Gan then made a note of the questions that he had asked the accused. On my analysis of the statement, the words spoken by the accused to which objection has been taken were made following the questions; that is, directly approximate to the questions. They were not uttered some time after the questions had been posed by Constable Gan. 11. The Crown submitted that there was also reasonable excuse in respect of the failure to raise the admission during the ERISP because the two police officers who conducted the interview were not aware of the admission; similarly, the investigating Officer in Charge, Detective Sergeant Whiting, was not aware of the admission. Hence, on the Crown's submission, it is difficult to accept that the admission should have been raised in the ERISP. 12. Mr Smith, however, submitted that Constable Gan plainly knew the admission was relevant as he recorded it in his police notebook and, as accepted by Constable Gan, he recorded it in the police notebook as something that was relevant to the investigation. In those circumstances, Mr Smith submitted that the failure to pass on the information to the other officers who might be conducting an ERISP (or the Officer in Charge) does not constitute a reasonable excuse. 13. In my view, it is significant that the premise behind s 281 of the Act is that official questioning will be recorded. As the Crown submitted, the section operates to prevent what used to be described as "verbals". I hasten to add that whilst it is not suggested that the questioning which took place in this instance was verballing, the provision must be interpreted purposefully, having regard to its text. 14. Reasonable excuse is defined in a non-exhaustive way to include: [1] 1. a mechanical failure; or 2. the refusal of a person being questioned to have the questioning electronically recorded; or 3. the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. 1. None of those apply here. 2. In this instance, the relevant officer has decided (despite what I infer was the availability of body worn video) to undertake questioning for the purposes of processing the accused into custody without the use of body worn video. 3. Again, Constable Gan might have considered that to be appropriate and he might have believed that he was just having a conversation with the accused, but when the words "reasonable excuse" are used in s 281(2)(a) of the Act, "reasonable" must be assessed objectively. In my view, the fact that Constable Gan decided not to record the questioning because he didn't think it was necessary is not an excuse which, when objectively assessed, is reasonable. 4. Further, whilst there is merit in the Crown submission that those conducting the ERISP had no idea about the admission which the accused had made while being processed into custody, Constable Gan plainly thought that it was relevant, as he wrote it down in his notebook. 5. The idea that a reasonable excuse might be made out by a police officer's failure to direct another officer's attention to something which the first officer thought was relevant is not something that is necessarily attractive. In any event, I do not need to consider further the second aspect of the argument. 6. I am not satisfied that the Crown has established that there was a reasonable excuse within the meaning of s 281(2) of the Act for the failure to record the questioning, which the Crown accepts was official, and during which the admission was made. 7. In the circumstances, I reject the tender of the evidence objected to.