New South Wales District Court CITATION: R v Hufnagl, Ernst No.1 [2008] NSWDC 134 HEARING DATE(S): 23/06/08 JUDGMENT DATE: 24 June 2008 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Application to exclude handwriting samples rejected; application to exclude some answers in ROI granted. CATCHWORDS: Criminal Law - interlocutory judgment - application to exclude evidence - handwriting samples - admissions - ROI - poor quality photographs used to confront accused in course of interview - allegations of identifying accused within photographs - no means available to accused to verify identity - misrepresentation re fornsic procedures being undertaken in respect of photographs - questions predicated on premise allegations correct - incriminating answers unfairly finessed from accused - meaning of admissions - can a lie constitute an admission - availability of s.90 relief when s138 "covers the field". Discussion of s.90. LEGISLATION CITED: s.85, s90, s138 Evidence Act 1975 PARTIES: Regina Ernst Hufnagl FILE NUMBER(S): 08/06/0447 COUNSEL: B. Levet for Crown (Cwlth) W. Hunt for Accused SOLICITORS: Mr M. Poberezny Office of the DPP (Cwlth) Ms P. Purcell of Watsons Solicitors JUDGMENT Applications to exclude evidence pursuant to ss 85, 90, and 138 Evidence Act 1995 1. Ernst Hufnagl is charged: Between about 21 September 2004 and 31 March 2005 at Sydney, NSW and elsewhere, he did conspire with John Paul Holloway and divers other persons to dishonestly appropriate property belonging to another person with the intention of permanently depriving the other person of the property, namely one shipping container numbered TEXU7273351 and its contents, which property belonged to a Commonwealth entity, that is the Australian Customs Service. 2. The Crown case is that the accused participated in an alleged conspiracy. The principal demonstration of his participation occurred at the Port Botany terminal on the night of the 31 st March 2005. The accused was a stevedore with eight or more years working experience with P&O Ports who serviced part of the Port Botany terminal. While working as a forklift driver in the Rail Heavy Lifting section on the night of 31 st March 2005, according to the prosecution he loaded onto a semi trailer a 40foot container TEXU7273351 (hereafter TEXU '351), which was then unlawfully removed from the Port Botany terminal by other participants in the conspiracy. The Port Botany terminal is a secure terminal, in that only authorized vehicles and personnel are allowed into the terminal and only authorized containers were released from the terminal. 3. As a consequence of viewing CCTV footage both the accused's employers and the Australian Customs Service (ACS) settled upon the accused as a person of interest. His premises were searched on the morning of 27 th April 2005 by ACS. That search was recorded to the extent that conversations occurring during the search were recorded on tape. A 64 page transcript of the tape has been taken out and became Voir Dire Exhibit 1. While not specified with precision in the search warrant, the defence conceded the terms of the warrant entitled the searchers to look for and seize samples of the accused's handwriting. ACS investigators seized two such samples. However, the defence objects to the proposed tender of other samples of a series of designated words and numbers written ten times over by the accused at the request of Customs Officers. There is no dispute the Customs Officers desired the repeated writing of the words and numbers as samples to be submitted later for forensic comparison with writing contained on various papers the investigators had collected during their search for evidence. 4. The defence further objects to the portion of the contents (pp29 – 30) of a 34- page record of interview (ROI) as containing admissions caused to be made by the accused as a consequence of misrepresentations and other improprieties by Officers of the ACS conducting the interview. The defence sought exclusion of the relevant admissions pursuant to any of sections 85, 90 and/or 138 of the Evidence Act 1995. A search warrant is executed 5. At 7:45am Wednesday, 27th April 2005 Customs Officers David Rooney (Rooney), Colin Oxford (Oxford) and "some gentlemen" (T. Search Warrant p.3) arrived at the accused home to execute a search warrant. The accused was provided with a copy of the warrant and invited to read it. Early in the execution of the warrant, Rooney cautioned the accused in the following terms: Well, before I start talking to you about this, I may caution you first up and advise you that I may be asking you some questions you are not obliged to answer but anything that you do say will be taken down on the tape and will be recorded and may be used in evidence. Do you understand that? 6. It should be noted by the uninitiated, the caution was limited in its terms: "I may caution you first up"; "I may be asking you some questions you are not obliged to answer"; "anything you say will be taken down on tape…and may be used in evidence? (Emphasis supplied) 7. While the Customs Officers were waiting for the accused's children to leave the house for school, they asked some questions of the accused in respect of matters that went directly to his part in the alleged offence (pp8 – 12.). The accused is cautioned. 8. A second caution in the conventional terms was administered immediately prior to the commencement of the search proper by Oxford. Having administered the caution Oxford also took the opportunity to ask questions in respect of the offence (pp 20 – 22.4). Officially the search appears to commence at 8:16am (p26). Thus it would appear the second caution was administered some minutes before 8:16am. 9. Numerous items were found during the search, five of which were seized. The tape picked up a whispered conversation between Rooney and Oxford. Oxford is saying: Just ask if we can get samples. They can get samples of his handwriting. We can take it under the general terms of the warrant." (words and punctuation changes added to transcript version of tape by me after hearing recording). It appears this may be the first consideration given by either Officer to a collection of sample handwriting by the accused. While there is an "Okay" recorded on the transcript as the next response from the accused, it is clear from the tape he was not a party to the conversation between Rooney and Oxford. 10. As the search progresses it must have become clear to the accused the ACS Officers were interested in samples of his handwriting. For example on several occasions he is asked if a document recently selected contains his handwriting. This exchange occurs (p.31.8) between Rooney and the accused: Rooney : Would this be your handwriting on this particular page here at the moment? Accused : Yeah, looks like it. Yeah. Rooney : Okay, We'll also take that page. Basically what we're looking at is the handwriting. 11. The search moved onto other rooms. At p.48 Oxford has another whispered conversation with an unidentified person, probably Rooney: To my untrained eye – one of those things. Not many people read a general … got a general power to take samples for forensic purposes. So handwriting samples for forensic purposes …explanations (?) … doesn't have to meet the conditions … Ask him a few more but… [punctuation changed; and words added from printed transcript after hearing tape]. The accused provides samples of his handwriting 12. At p.57 a revue commences of the evidence found and seized. The time is now a little after 9:41am. At p. 60 Rooney is recorded as again telling the accused: "We are looking at the handwriting that is involved there." 13. There is a discussion about a small notebook that is apparently used by the accused to record how much money he collects each week from those he plays golf with for an end of year Christmas party. This exchange occurs between the accused, Rebecca, a Customs Officer, Rooney and Oxford: Accused : There shouldn't be any notes in there Rebecca : I mean like your handwritten notes Accused : Yes, yes. There would be that in there, yes. Rebecca : That's all there is. I'm not sure … Rooney : Well, hopefully just saying we could get that back to you. Oxford : There is another way around it, which I will let Rebecca do her thing first [enter seized items in the relevant log book]. Accused : It just means we will be a week behind, that's it…. Oxford : Before we finish, as you can see we have taken a number of handwriting samples of yours just for comparison against some other items that we have. Accused: Yes Rooney : Now, as I was saying, there is another way that we can do it and that is for you to give us a handwriting sample. Would you be prepared to do that? Accused : Yes, I was going to say that myself. Why didn't you just ask me for one? Rooney : Yes okay. (Apparently speaking to someone else) Hang on a minute - not with the computers, but with the other handwriting pieces – a minute [punctuation changed from transcript]. Oxford : What is normally required is for comparison, they need a minimum of 10 samples of each word. What I've done is, they are the words we are interested in. If you would be prepared to write those 10 times? Accused : Yes, Who wrote that? It's a spitting image of mine [Words additional to transcript after hearing tape played]. Oxford: Me. 14. Thereafter the accused writes, 10 times, a series of words, number combinations, vehicle registration numbers and his name as directed by Oxford and Rooney. 15. The accused remarks at the conclusion of the exercise: You have obviously got that because my handwriting is on something. Somebody has got hold of something with my handwriting on it and I know that for a fact. 16. The exchange with Rooney continues: Rooney : You said you know that for a fact that somebody has got some handwriting Accused : Well, that's the only reason you will be doing this, comparing this with someone else. Oxford : Yes, obviously, yes, there is some handwriting we need to check and eliminate. The defence objects: 17. It would appear, as best one can tell, the sample of 10 times words and numbers was commenced about 1½ hours after the full caution given by Customs Officer Oxford. 18. The defence submissions are that the words and numbers as created by the accused in the sample constitute representations made by him of handwriting; that their reception into evidence would be adverse to his interest and therefore constitute admissions made by him. The defence argument is that the admission of these requested samples into evidence in the present case would be unfair to the accused. (s.90 Evidence Act 1995) 19. I accept the handwriting samples are capable of constituting admissions against interest made by the accused. A review of the circumstances in which the admissions were made establish the following propositions: · The accused was initially put on notice that some of what he said may be used as evidence against him. Generally the initial caution was inadequate – but it gave him some notice that some evidence could be gathered during the search warrant. · The second caution made clear that anything he did or said could be used in evidence against him. · The Customs Officers were interested in his handwriting – and communicated their interest to him. · The searchers made clear to him they were interested in collecting existing samples of his handwriting for purposes of comparison. · The customs officers made the accused aware that when the truck, being driven around by John Holloway, was searched there was a slip of paper, part of the driver's log, that had the accused's name on it. · The accused was making a point of co-operating with, and seen to be co-operating with the searchers. · The accused told the searchers he was "freaking out" and "why would he" [Holloway] have my name in his truck"; "why did he write my name down" (my emphasis); "that's what's scaring me". · The accused was also presenting as being confident that his non-involvement would be established. "I'm not really concerned because I didn't do anything wrong"; "I'm not hiding anything" and "I'm sure you wont find anything [on the computers]". · The Custom Officers were canvassing with the accused that there was another way that handwriting comparison samples could be accomplished – that is the supplying of such samples by the accused. It is unclear whether this was being canvassed as an alternative to the seizing of samples. It would appear the seized samples were already entered on the seized documents log. It would also appear there was no return of the seized documents. No complainant has been made by the defence that the return of the items was a condition precedent to the accused's agreement to supply samples of his handwriting. Nor am I prepared, as presently advised to make any such finding. · The accused's response to the request he supply samples of handwriting is determinative of his attitude – "Yes, I was going to say that [I am willing to supply a sample] myself. Why didn't you ask me for one." · The Customs Officers were seeking the samples of handwriting outside the terms of the search warrant. They appear well aware that their chances of obtaining such a sample depended upon "asking" the accused to supply them. 20. For the purposes of the voir dire I am satisfied the accused position towards the ACS search warrant team was that he had nothing to hide; apart from gossip at the workplace he had heard nothing about the theft of TEXU'351; and that he was prepared to cooperate with the investigators. He well knew the investigators were interested in comparing his handwriting with other handwriting in their possession prior to agreeing to supply samples. He well knew, prior to providing samples of his handwriting, the ACS regarded comparisons of his handwriting as having a potential of making or confirming him a suspect. I do not rule out as a possibility (although it would seem remote) that he may have believed the comparison of his handwriting was limited to the handwriting on the back of the driving log that contained his name. However, the sample writing of his name was among the final exercises required of him by Oxford. I am also satisfied he was anxious to establish his willingness to cooperate. Hence he accepted the invitation claiming, probably truthfully, that he was contemplating making the same offer as was requested of him. 21. In a situation where he was seeking to advance his claim of non-involvement and where he had been cautioned he did not have to say or do anything, it can hardly be unfair to him to admit the samples of handwriting he voluntarily supplied. Further, he volunteered when he well knew the sample writing contained in the documents was desired by the investigators to compare to other handwriting in their possession. 22. I review the terms and scope of s.90 Evidence Act 1995 later in this judgment. It is sufficient if I say there is nothing in the circumstances of the taking of the samples that suggests unfairness to the accused at his trial. Sections 85 and 138 have no application to this matter. 23. The application to exclude this evidence from the jury is rejected An application to exclude part of the ROI 24. On 5th May 2005 the accused was interviewed by Custom Investigator David Rooney (Rooney) at Customs House Mascot. Also present was Customs Investigator Ted Geverding and a solicitor, Philip Pastfield, provided by the accused's industrial union. The interview was recorded on a tape recorder. The transcript of the recording was tendered on the voir dire. 25. There was no indication from either investigator at the outset of the interview of the general purpose of, or the reason for the interview. However, the accused could have been in no doubt that he was being questioned by ACS officers in respect of the disappearance TEXU'351, from the P&O terminal at Port Botany on 31 st March 2005. 26. The Crown case is the accused used a forklift he was working to load TEXU'351 onto the trailer pulled by a Red Atkinson prime mover being driven by one John Holloway (nominated in the indictment as a co-conspirator). Prior to the interview Rooney had studied CCTV footage of the terminal taken at the time of the theft of TEXU'351. Contained within that footage were images in which a person, dressed in a distinctive yellow shirt and tan coloured shorts, approached the Red Atkinson semi-trailer and then entered through the passenger side door into the prime mover's cabin prior to its trailer being loaded with the container. On the Crown case this was an act done by the accused in furtherance of the conspiracy. Three still shots used in the interview 27. Three still shots of the CCTV footage were loaded onto Rooney's computer for use during the record of interview. The first still shot, which I have assumed is the best photograph available for its intended purpose from all the CCTV footage showed a male dressed in a yellow, long sleeve garment and light coloured shorts that appear lighter than the colour of the male's skin, with a full head of brown hair, walking through a doorway and looking away from the camera. While there are no distinctive facial features visible, the parties agree it is a photograph of the accused, no doubt based upon their earlier viewing of the CCTV. Frankly, however, this still photograph – as distinct from the moving image on the CCTV - does not present as a vehicle for forensic identification or recognition by a person who, prior to the incident, had not previously met or known the accused. I do accept the accused recognized himself from the photograph. 28. The second shows the Red Atkinson prime mover and a trailer parked in a holding yard prior to entering the terminal proper. 29. The third was taken from the CCTV footage at a time when a person dressed in the distinctive yellow upper garment approached the Red Atkinson prime mover still some 5 to 8 metres from the passenger side door. The quality in the photographic printout from the computer screen is abysmal. Allowing for a somewhat better reproduction of the original CCTV image on the computer screen, the image displayed on the computer must still have been abysmal for any useful forensic identification. 30. The photograph tendered in evidence appears as though taken through a lens with a reddish tinged filter. There is a reddish hue throughout. There are 2dozen or so small white patches scattered haphazardly through the picture. The evidence discloses these are lights scattered throughout the terminal, situate below the main lighting on tall poles not shown in the photograph. Having viewed the CCTV footage these lights appear attached to moving equipment such as cranes, gantries, forklifts, and vehicles. Some of those small white patches, now identified as lights, also had a prominent reddish hue. On first viewing this third photograph it may take the viewer, particularly without the aid of an earlier viewing of the second photograph, some time to identify the Red Atkinson, its trailer, cabin and wheels. Indeed from this third photograph it is difficult to tell the outline of the front of the truck, for example where the truck grill (if it has one) is located, whether the prime mover's front is flat, level with the driver's window, or has an engine contained forward of the windows like an old Rolls Royce. 31. Between the truck and bottom margin of the paper is an orange oval shape – perhaps the size of the index finger's fingernail. From this photograph it would be impossible to identify the nature of the object, its true colour, or where it began or ended. Remembering the red hue covering the photograph, as a matter of logic, one might conclude its true colour is not accurately depicted by the photographic reproduction. The centre of the object is lighter than the margins. It may be the object could be mistaken for a stainless steel drum reflecting light. 32. On the Crown case it is the accused, clothed in a yellow long sleeved shirt walking away from the camera towards the truck. The gender, head, arms, or any other physical attribute is absolutely unrecognizable in this photograph. This photograph was used unfairly in the accused's record of interview to finesse a response from him. Impropriety occurs in the interview 33. In the course of the interview the accused admitted that he generally always wore a yellow florescent shirt and a pair of shorts. He told the investigators that on the relevant day he was working as a forklift driver for each of the three work sessions during his shift. 34. Contained in the interview is the following (which is the subject of objection): Rooney : All right. I'm now – I'm going to show you a series of images from CCTV footage that was given – was taken on the night of the 31 st March at P&O Ports. You may be able to assist us with some identification of situations, and provide answers that may clarify some of these outstanding questions we've got but just before we examine the photographs, which we have a series of here, I would like to remind you that you are still under the caution that I administered earlier. Therefore, I repeat that you are under no obligation to say or do anything, as anything you do say will be recorded on the tape recorder as the interview takes place, and may be later given in evidence. Accused: Yeah. Rooney : Right, okay. Now, we will go into some tapes. I'd like you to look at these, if you would please, Ernst --- Accused: Mm Rooney : --- because I'm partly in a position to also see these. The first one that we're coming up to … Accused: This one here? Rooney : Okay. What we have there, we've got the truck. That is the red truck, that is there. It shows the red truck that was involved waiting to actually enter the loading area. [punctuation changed from ROI transcript]. Accused: Mm. Rooney : Do you see the red truck there? Accused: Yeah. Rooney : Move the screen if you cannot see it, right? Is that better? Accused: That's better. Rooney : Okay. As you'll see the red truck is sitting there. Accused: Mm. Rooney : Do you recognise this vehicle? Accused : No, it doesn't ring a bell. Rooney : Okay, so if we could move on please, Ted [Geverding] to the next one. All right. Now, what we have here is the truck again. Accused: Mm. Rooney : Let me explain first with these. These photographs are not that clear on this computer. Accused: Yeah. Rooney : We've had these blown up. But we are getting them digitally enhanced. We can recognise --- [punctuation changed from transcript]. Accused: Mm. Rooney : --- everything. Okay. Now, this picture shows a person approaching the truck --- Accused: Mm. Rooney --- and this person has been identified as you. Accused: Yeah Rooney : Now, why did you approach the truck? Geverding: Can I ask a question? Accused: Do I have to --- Rooney : Well, hang on just one moment. Geverding : I don't - its only for the benefit – I don't know where the person is. (my emphasis). Rooney : Okay, yeah. I know it's awkward but it's right here. (probably indicating on photograph – or at least so I have inferred). Geverding : I just though for any benefit --- Rooney : Yeah, good point so I should have actually pointed that out but --- Geverding: Yeah. Rooney : --- it's walking to the truck. Geverding: Yeah, all right. Accused : Well, the only explanation I can give for that is, if it was on that night, is that that's the idiot that said he had my phone. Remember I told you I'd lost my phone (punctuation changed from ROI transcript). Rooney: Right. Accused : Right, and I went and asked a few people. Rooney : So you give me your explanation. Accused : Yeah, so after I asked a few truck drivers, he said, "I found the phone" all right, and I said, "Well, have you got it?" He said, "It's in my truck." So I said, "Well, can I get it?" and he said, "Yeah, go out to the truck. Come out to the truck and I'll give it to you." Yeah, so anyway I jumped into the truck, he handed me a phone, it wasn't it. So I said, "This is not my phone." He said "Well, you can have it anyway. It's an old one I found." I said, "I don't want your phone. It's not my phone" something alone those lines. So I said, "All right" and that's it. Now, this is getting out of hand now and it's just starting to freak me out. These blokes …. [paragraphing not in original ROI text]. Rooney: Okay Accused : Christ, these blokes are setting me up real bad. I don't know Phil. Should I answer any more questions? (punctuation changed from transcript) Pastfield : Well, it's a matter for you. If you want to stop now and have a chat to me first, that's your right to do so." 35. There is a passage in this section of the interview that needs to be examined in some detail. Rooney is talking: "…These photographs are not that clear on this computer. We've had these blown up. But we're getting them digitally enhanced. We can recognise everything. Okay. Now, this picture shows a person approach the truck and this person has been identified as you." 36. It is difficult to understand the purpose of this passage to the questioning of the accused on the topic about to be approached. That topic, if I understood it correctly was to question the accused about his knowledge of, and circumstances in which he may have approached and entered the cabin of the Red Atkinson. This passage's purpose, as with the whole of the questioning, could only have been about advancing the investigators knowledge of the circumstances of the offence, by establishing a series of false premises (blowing up of the still shots/digitally enhancement/recognition of everything/identification of accused) to ask the question immediately following this passage – "Now why did you approach the truck?". 37. It may also have been about overstating the strength of the investigators' potential evidence against the accused. The purpose of overstating the strength of the investigators' position could only have been related to intimidating the accused. 38. I have accepted Rooney's observation: "These photographs are not that clear" as an understatement. It is to be remembered, but for Geverding's interruption the object that was said to be "a person" "approach[ing]" a truck would not have been specifically drawn to the accused's attention. 39. The comment: "We've had these blown up" was capable of being construed as, and in my view was, a misrepresentation. No photographs had been blown up. Customs Officer Rooney's evidence is that what he meant by these words was that the original CCTV images had been seen by him on a larger screen than the computer screen being used in the interview. There is such a gulf between what Rooney says he meant and what he actually said that it is difficult to accept him as accurately evidencing what he really meant by these words. I suspect he was dissembling when he was cross-examined on this topic. 40. Rooney next told the accused: "We're getting them digitally enhanced." It is to be remembered, from the perspective of the accused, this is an officer with all the resources of a major Commonwealth department behind him making a positive statement of what would be, or what was then happening to the "blown up" photographs. It may also be capable of being interpreted as an explanation of why the "blown up" photographs were not present at the interview. In fact the photographs, or more accurately the CCVT stills stored to computer files were never digitally enhanced. 41. These representations were followed by a further: "We can recognise everything." The statement is expressed in the plural. Any review of the evidence before me most favourable to Rooney, would leave open the proposition that he alone would claim to "recognise everything" in the photograph. Even so, he was not put to the test on that score in the cross-examination. However, in answer to the one question he was asked on this topic he conceded he could not recognise the accused's face. The statement was intended as a self-serving precursor to what followed: "this person has been identified as you." 42. Rooney's evidence was he recognised the accused from the CCTV footage that was the original source of the third photograph. The so called recognition of the accused was based upon an assumption of the gender of the person, the colour of the shorts when they were visible, the colour and cut of the yellow work garment, and an assumption that it was florescent. Of all the stevedore workers on duty that day, only three (evidence subsequent to the voir dire put the number at five) were said to be wearing a yellow upper garment. Of those claimed three, only the accused was said to possess a full head of brown hair. Thus when a full head of hair was visible in a yellow, long sleeved, (assumed) florescent upper garment, by a process of elimination, the person so seen was assumed to be male and "recognised" as the accused. Finally it was said the accused had a particular gait from which he could also be recognised. Rooney's evidence was when viewing the particular passage of the CCTV footage from which the photograph was taken he identified the accused from the cut and colour of the yellow work upper garment, the colour of the shorts, the full head of hair and the gait of the accused in the last few steps before the person entered the Red Atkinson's cabin. 43. The next statement by Rooney is "Now this picture shows a person approaching the truck." That would not have been apparent to the accused viewing the photograph for the first time. Frankly it could never have been apparent to a stranger to the photograph who had not seen the CCTV footage. I accept the CCTV footage shows someone walking to the truck. But the photograph from the footage fails miserably to depict that proposition. The accused should not have been required to take the interviewer's word on this proposition. 44. Rooney's ace was: "This person has been identified as you." I regard this statement as a misrepresentation. It is significant that the person or persons who made the claimed identification and their knowledge of the accused was/were not identified to the accused by Rooney. A fair reading of the statement leaves open an implication to the accused that a person or persons other than Rooney made the claimed identification. Only one independent person, Joseph Schofield, has been offered by the Crown as expressing any opinion on the identity of the person approaching the truck. Rooney's evidence was that Andrew Adam and Joseph Schofield also identified the figure approaching the truck's cabin as the accused. In cross examination he conceded the identification came about in circumstances where there were a number of persons in the room looking at the CCTV all of whom reached a general agreement that it was the accused. Such identification is really of little forensic value if it comes from general discussion and a pooling of ideas. The prospects of contamination are high. 45. Andrew Adams was not called to give evidence on the voir dire. Earlier he had given evidence in the trial. But neither side asked questions of him on this topic. 46. Mr Schofield is a member of P&O's senior management who worked with the accused and knows him well. He conceded he could not identify the accused as that person and that he made a statement in those terms shortly after he viewed the CCTV footage. Rooney claimed Schofield was one of those who made the identification. This so called identification was based upon a theory as to gender, clothing, hair colour and covering, and gait for the last few steps before the person entered the semi's cabin. If the premise was incorrect, the identification was in peril. Rooney was, in the circumstances, required to expose to the accused the basis of his identification so that his thesis could be understood by, and if there was an answer, then answered by the accused. By that I mean obtain concessions from the accused that he was one of only 5 persons wearing that particular yellow garment that night, that the other four were of otherwise different appearance, that there were no women working in the yard, that he favoured his left leg when walking, and so on. The failure so to do was a denial of natural justice to the accused. 47. A fair reading of this introductory passage from Rooney would leave the impression the interrogator had seen blown up stills that were clearer than the computer image shown to the accused; that the blown up stills were to be enhanced so that the digitally enhanced images would provided clearer images still. There may well be circumstances where that detail would be admissible if given evidence by Rooney outside a record of interview, but this is not one of them. Further, the passage also leaves the impression that investigators could recognise everything from the blown up pictures including the third one shown to the accused on the computer and that the picture on the computer was a picture of the accused approaching the truck, and that he was so identified by an independent witness or independent witnesses. That evidence if given outside the interview would not be admissible from Rooney – it would not be relevant, would be hearsay, and would contravene principles enunciated in the High Court case of Mundara Smith v The Queen [2001] HCA 50. 48. Having put these inadmissible representations to the accused Rooney then asked his question: Now why did you approach the truck? 49. While Geverding's reaction to the question is the first recorded, the reaction of the accused bears a moment's consideration. He asks an unfinished question "Do I have to ---". From the transcript it is not apparent to whom the question was directed. Some indication of that is given in the final parts of the whole excerpt of the interview quoted. I am satisfied the question that was interrupted was addressed to Phillip Pastfield, the solicitor. I am satisfied these were the first words formulating an enquiry from the accused as to whether he was required to answer or continue with the interview. The accused appears to have been interrupted by Rooney : "Well, hang on just one moment." 50. Then there was some further explanation of the photograph at the request of Geverding, but Rooney's question was not withdrawn. It should be already readily apparent from what has been thus far set out, but let it be clearly said, the conduct of Rooney at the point in the interview where he shows the accused the third photograph and then seeks to question upon it, was improper. 51. The impropriety, however, did not stop there. The propositions enunciated by Rooney in his explanation of the pictures, if true, were highly incriminating of the accused, namely that the object selected by Rooney as a person was indeed the accused captured on CCTV; and secondly, that at the moment he was so captured he was approaching the Red Atkinson. Prior to asking the accused why he approached the truck, it was incumbent upon Rooney to obtain admissions from the accused that he was the person in the photograph and that he had approached the truck. That was not done. In those circumstances Rooney's question assumed both propositions adversely to the accused. It is a classic instance of the "Have you stopped beating your wife?" type questions. The accused's reaction to it, as expressed to Pastfield, "Christ, these blokes are setting me up real bad." is entirely understandable. 52. I am satisfied the answers given by the accused, now sought to be relied upon by the Crown would not have been made in the form they were made but for the impropriety of the questioner. I am satisfied the conduct leading up to the question was improper because of the representations made by Rooney. I am also satisfied the question itself was an improper question. I am satisfied there were instances of procedural unfairness to the accused demonstrated in the portion of the record of interview now under consideration. That procedural unfairness is to be found in the misrepresentations, the denial of natural justice and the improper questions. Each constitutes and collectively all constitute unfairness to the accused. 53. The accused's immediate response "Yeah" to the representation, "this person has been identified as you." is not to be construed as an acceptance, admission to or an agreement with the proposition that the object in the still shot on the computer screen is him. Throughout the interview to this point he has used the word 'Yeah' or the sound "Mm" on several occasions as nothing more than a responsive filler to indicate he is following what is being said. On other occasions he has used the word "Yeah" to indicate acceptance of or agreement. The "Yeah" uttered by the accused immediately before the one after Rooney's question is an example of him using "Yeah" as a responsive filler. His second use of "Yeah" as a responsive filler becomes clear once the significance of the accused's words "Do I have to ---" is understood. 54. The accused's answer appears based upon the premises set by his questioner. He replies: "The only explanation I can give for this is if it was on this night is this idiot said he had my phone." (my emphasis). Thereafter an account is given by the accused explaining his entry into the truck. The Crown says the account is false. The Crown would be seeking to rely upon it as a demonstration of a consciousness of guilt. In the alternate it would seek to rely upon it as a serious attack upon the credibility of the accused, particularly as to his honesty. 55. Thus the Court is asked by the prosecution to excuse the behaviour of the investigators – behaviour that also goes to the credibility of the investigators – so that it can attack the credibility of the accused, perhaps to the ultimate by advancing a consciousness of guilt argument. To do so would be unfair to the accused. 56. Consciousness of guilt would certainly be a factual issue of the question of guilt, as distinct from simply being a credit issue. As I said during argument, I would be reluctant to leave consciousness of guilt to the jury when other explanations are equally compelling. The answer as given raises an element of speculation - "if it was on this night". The answer also has an element of acceptance of assertions made by Rooney (the truck was involved in the heist, there was a person in the photograph, the person was approaching the truck, and that person was the accused) none of which the accused had admitted as being within his knowledge. A theory of consciousness of guilt based upon such illusory foundations should not be allowed to go to the jury. It would only be upon an acceptance of Rooney's assertions that the explanation given by the accused would be a lie (assuming for the sake of argument it is a lie) qualifying as one sufficiently telling as to permit consciousness of guilt to be considered by the jury. 57. That appears to leave the accused's answer (assuming it is a lie) as going to credit issue, particularly a deliberate untruthfulness. The position of the parties 58. The defence argues Rooney behaved improperly during this portion of the interview. It should be excluded pursuant to s85, s90 and/or s138 Evidence Act 1995. 59. The Crown says if I determine there was impropriety or improper conduct, I should have regard only to s138 to determine the issue. My understanding of the Crown position is that if the improper conduct resulted in an unfairness, I should still assess the admissibility against the criteria set in s.138(3). Initially the Crown resisted the existence of impropriety in Rooney's questioning. However, as the argument continued, my sense was the Crown recognised a likelihood that an impropriety would be found by me. In fairness to the Crown I should note, I do not regard its preparation of Exhibit Book II with the relevant passage excluded as any concession by it that the defence had made out its argument. It was more a recognition of the inevitable – that I had determined, despite Crown's argument to the contrary, to exclude the relevant passage. The resolution 60. Section 85 Evidence Act 1995 applies to evidence of an admission made by an accused in criminal proceedings. The admission has to be made in the course of official questioning, that is questioning by an investigating official in connection with the investigation of the possible commission of a criminal offence by the accused. I am satisfied Rooney was an investigating officer. Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. 61. The passage relied upon by the Crown is the passage it argues constitutes a deliberately dishonest reason for the accused's approaching the cabin of the Red Atkinson. The dictionary definition of "admission" as meaning a representation that is made by a defendant in criminal proceedings and is adverse to his interest in the outcome of the proceedings. Given that the use the Crown seeks to make of the passage is adverse to the accused's interest in the outcome of the proceedings, the passage constitutes an admission. 62. There is little doubt the circumstances in which the admission was made will ensure it was accurately recorded. If that is what is meant by the "truth of the admission" then section 85 would not offer any comfort to the defence. Neither party sought to argue it had any other meaning or could carry more than one connotation. 63. The next question is whether I should then determine whether s.90 applies. However, before I can do that, I must confront the Crown argument that in the event of any impropriety I must consider s.138. S. 90 Evidence Act is not necessarily dependant upon an impropriety in the circumstances in which an admission is made. The conditions precedent to the operation of s.90 include: criminal proceedings, evidence of an admission being adduced by the prosecution, and the circumstances in which the admission was made being unfair to an accused to use the evidence. Where those conditions precedent apply, the discretion of the court appears limited to two propositions - refusing to admit the evidence at all, or alternatively, refusing to admit the evidence to prove a particular fact (such as say consciousness of guilt). As the section presents, proved unfairness must yield one of two results. 64. By contrast s.138 gives to the Court discretion to exclude improperly or illegally obtained evidence. The conditions precedent to its enlivenment include "evidence" obtained improperly or in contravention of an Australian law. "Evidence" embraces admissions, but of course, includes much more than admissions. The discretion given to the Court is a balancing exercise expressed as unlawfully or improperly (tainted) "evidence … is not to be admitted unless the desirability of admitting the evidence outweighs the underisability of admitting evidence that has been obtained...". The burden falls to those who would have the 'tainted' evidence admitted. Sub section 138 (3) provides a list of matters to be considered important to the exercise of discretion. It is not an exclusive list. 65. S. 90 then is concerned simply with the fairness of admitting into evidence the admission in criminal proceedings, and the circumstances in which the claimed unfairness arose. It is not concerned with policy issues. S. 138 applies in all proceedings. It is confined to evidence obtained via improper or illegal conduct and considerations of policy impacting upon the admission of evidence obtained. While it is true that "unfairness" and illegal or improper conduct may see some overlapping of applications for the exclusion of evidence, there is no requirement upon a Court to look firstly to s 138 and subsequently to s 90. The final words of s. 90 "it would be unfair to the defendant to use the evidence" do not require the court to determine that issue through the prism of s 138(3). 66. The unfairness referred to in s.90 includes consideration of the accused's right to a fair trial, and whether procedural fairness was extended to him in the circumstances in which the admission was made. An example of failure to extend procedural fairness to an accused may well arise if the accused freedom to chose to speak to investigators is impugned. That could occur wh ere an accused has been mislead by the investigators, or ridiculed or demeaned by them as he gives his account. 67. I have already indicated that I do not regard procedural fairness was extended to the accused during the course of this passage of the interview. I am satisfied the accused's right to a fair trial would be impinged if this passage of the interview was tendered. The onus was upon the defence to so persuade me. It has satisfied the onus. The prosecution has not sought to argue for the evidence to be admitted for a limited purpose. In all the circumstances I propose to exclude the evidence complained of. Other than what I have said above about s138, I have not otherwise considered its application to this matter. 0o0o0o0 - 1 - DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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