R v Schiavini [1999] NSWCCA 165

Reported Decision : 108 A Crim R 161

New South Wales Court of Criminal Appeal CITATION : R v Schiavini [1999] NSWCCA 165 FILE NUMBER(S) : CCA 60616/98 HEARING DATE(S) : 25 June 1999 JUDGMENT DATE : 1 July 1999

PARTIES : Regina Walter Schiavini (Appellant) JUDGMENT OF : Spigelman CJ at 1; Studdert J at 2; Adams J at 25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/3045 LOWER COURT JUDICIAL OFFICER : Ford ADCJ

COUNSEL : L.M.B. Lamprati (Crown) J.S. Andrews (Appellant) SOLICITORS : C.K. Smith (Crown) Marsdens (Appellant) CATCHWORDS : Criminal law; evidence; admissions recorded in police notebook; entry signed; no tape recording of admissions; whether reasonable excuse; admissions inadmissible under s 86 of Evidence Act; requirements of s 424A of Crimes Act ACTS CITED : Crimes Act Evidence Act CASES CITED: R v Horton (unreported, NSWCCA, 2 November 1998) DECISION : Appeal allowed; conviction quashed; new trial ordered

IN THE COURT OF CRIMINAL APPEAL

60616/98

SPIGELMAN CJ STUDDERT J ADAMS J

Thursday 1 July 1999

REGINA v Walter SCHIAVINI

JUDGMENT

1 SPIGELMAN CJ: I agree with Studdert J. 2 STUDDERT J: The appellant, Walter Schiavini, stood trial in the District Court before Acting Judge Ford and jury on an indictment that contained seven counts, six of which charged him with commission of armed robberies and the seventh of which charged him with attempted armed robbery. The appellant was convicted on six of the seven counts and was acquitted on one of the counts of armed robbery. He was subsequently sentenced to six years penal servitude with a minimum term of four years six months. 3 The appellant has appealed against his conviction. Whilst the notice of appeal filed included two grounds of appeal, the first of these was abandoned and the appellant relied only upon one ground, namely that the trial judge erred in admitting evidence in the nature of admissions made by the appellant to Det. Inspector Rees in the course of an interview on 10 November 1997. 4 All the offences charged allegedly took place in the first half of 1997 and the prosecution case was that the appellant acted with two other offenders, David Lehmann and Travis Williamson. The case was that the appellant and Lehmann were both involved in the commission of the seven offences charged in the indictment and that Williamson also participated in those offences, save for the one charged in the second count. The jury acquitted the appellant on that second count. 5 It is not necessary for present purposes to record in close detail the facts presented in respect of each of the matters charged. Broadly, the armed robberies followed a familiar pattern. On each occasion commercial premises were targeted, comprising two bottle shops, a liquor store, a mixed business store and two service stations. On each occasion at least one offender was armed with a rifle and on four of these occasions the second offender carried a knife. Each of the offenders wore balaclavas, save for the occasions of three of the robberies when the second offender wore what was variously described as a gorilla mask or a monkey mask. 6 The last of the offences charged was the attempted robbery of a bottle shop. A passer-by noted the registration number of the car in which the offenders fled from the scene. This car was a Gemini motor vehicle SPK 965 and it proved to be owned by Enzo Schiavini. In November 1997 police officers executed a search warrant of premises occupied by Lehmann and found, amongst other objects, a gorilla mask, a number of knives and ammunition. Lehmann admitted his involvement in the subject offences and nominated the appellant as one of the co-offenders. Subsequently Williamson did likewise. These men gave evidence against the appellant at his trial. A common feature of their evidence was that the car used in the robberies charged in the fifth and sixth counts was a Gemini supplied by the appellant. 7 Against this background I turn to consider the evidence, the admission of which has prompted this appeal. 8 On 10 November 1997 Det. Inspector Rees interviewed the appellant at Macquarie Fields Police Station and his evidence was relevantly as follows: "I spoke to Mr Schiavini at about 12.05. I obtained his personal particulars and then said to him 'I'm gong to speak to you concerning a number of armed robbery offences, I want you to understand that you are not obliged to say anything unless you wish as anything you do say I'm going to record in my notebook and may later be used in evidence. Do you understand that?' He said 'Okay'. I said 'Do you wish to be interviewed by electronic means? By that I mean audio and visual recording, again you don't have to unless you wish as it may be used in evidence against you. Do you understand that?' He said, 'No thanks'. I said, 'I'm going to ask you questions and I'm going to record in my notebook, do you understand that?' He said 'Yes sir'. I said 'Do you know David Lehmann?' He said 'Yes'. I said 'Do you know Travis Williamson?' He said 'Yes'. I said 'Both of these men were arrested on Friday 7/11/97 and charged with a number of robberies, do you understand that?' He said 'Yes sir'. I said 'They were both interviewed and they have nominated you as being involved, do you understand that?' He said 'Yes sir'. I said 'I'm not [sic] going to play you a tape between David Lehmann and Detective Sergeant Bullock. I want you to understand that you don't have to say anything about the contents of the interview unless you wish as anything you do say will be recorded and may be later used in evidence. Do you understand that? He said 'Yes'. I said 'I will now play the tape. You don't have to say anything, do you understand that?' He said 'Yes'. The interview was suspended at 12.20 pm whilst the tape was played. At 12.55 pm I said to Schiavini 'Is there anything you wish to say concerning the tape? Again, you don't have to say anything unless you wish?' He said 'No not really, I don't want to listen to any more.' I said 'What can you tell me about vehicle SPK 965?' He said 'It's my brother's or my dad's or one of them.' I said 'Do you use that vehicle?' He said 'Yes I use it a lot and they and I lend it out.' I said 'Do you have any knowledge of a gorilla mask?' He said 'Yes my brother had one.' I said 'What happened to that mask?' He said 'It went missing.' I said 'Do you know where it went?' He made no reply. I said 'Can you tell me who had the Gemini on 5/6/97?' He said "I can't remember that far back.' I said 'Is there anything further you wish to say about this matter?' He said 'No sir.' I said 'Will you read this entry?' He said 'Yes.' I said 'Will you sign it?' He said "I will sign it.' I then left the room and spoke to Sergeant Gale and I returned to the interview. I introduced Sergeant Gale and then left the room. I photostatted my notebook entry and handed it to Wally Schiavini." 9 The relevant passages of the notebook were then tendered and admitted into evidence. Although the transcript records that counsel expressed no objection to that tender, the trial judge, in his later ruling as to the admission of the evidence here complained of, referred to the objection taken by counsel in reliance upon s 424A of the Crimes Act, so it is plain that appropriate objection must have been taken at the trial. It is s 424A of the Crimes Act upon which Mr Andrews has relied on this appeal. 10 The section is in these terms: "424A. Admission by suspects