New South Wales Supreme Court CITATION : R v Matheson [2001] NSWSC 216 FILE NUMBER(S) : SC 70032/00 HEARING DATE(S) : 19 - 20 March 2001 JUDGMENT DATE : 21 March 2001 PARTIES : Regina v Danny Raymond George Matheson JUDGMENT OF : Howie J at 1 COUNSEL : P Barnett (Crown) J. Stratton (Accused) SOLICITORS : S. O'Connor (Crown) B. Duchen (Accused) LEGISLATION CITED : Criminal Procedure Act - s 108 CASES CITED : R v Rowe [2001] NSWCCA 1 DECISION : The evidence of the alleged admission is inadmissible and is rejected. SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION HOWIE J WEDNESDAY 21 March 2001 70032/00 - REGINA v DANNY RAYMOND GEORGE MATHESON JUDGMENT ON ADMISSIBLITY OF EVIDENCE 1 HIS HONOUR: The accused has been indicted for the murder of his ex de facto partner. When arraigned the accused pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept this plea in satisfaction of the indictment and, therefore, the trial of the accused on the charge of murder is to proceed. At the outset of the trial an objection was raised by Mr Stratton, counsel for the accused, to evidence which the Crown intends to lead of an admission allegedly made by the accused as to the circumstances in which the deceased was shot by him. I was asked to deal with this objection before the Crown opens its case to the jury. 2 The admission is alleged to have occurred during a telephone conversation between a police officer and the accused, which took place before the accused was arrested for any offence. It has been submitted by Mr Stratton that the part of the conversation containing the alleged admission is rendered inadmissible by s 108 of the Criminal Procedure Act. 3 That section provides in effect that an admission which has been made by a person suspected of having committed a criminal offence in the course of "official questioning" by a police officer and which relates to an indictable offence (other than an offence which can be dealt with summarily without the accused's consent) is not admissible unless there is available to the court a tape recording of the interview in which the admission is made. Although there are circumstances in which an admission may be received in evidence, even though no tape recording of the admission is available to the court, those circumstances do not apply in this case. 4 It has been accepted by both the Crown and Mr Stratton that the admissibility of the alleged admission would depend upon whether or not the conversation between the police officer and the accused occurred in the course of "official questioning" as defined in subsection 108 (4). The relevant part of the section is as follows: "Official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". 5 The circumstances giving rise to the conversation between the police officer and the accused can be stated briefly. On 2 October 1999 police officers Saunders and Hamlin were performing general duties at Tamworth Police Station. At about 7.30pm Senior Constable Hamlin received a report on the police radio that shots had been fired and a woman had been heard screaming at 7 Coromandel Street, Tamworth. Senior Constable Hamlin and Constable Saunders travelled by police motor vehicle toward that address in order to investigate what had occurred. During the journey they heard via the police radio that the accused had assaulted the victim with a baseball bat and had left the location in a red Gemini. 6 Instead of continuing to Coromandel Street, the two officers decided that they should proceed to the home of the accused's parents on the off chance that the accused might go there or that his parents might know of his whereabouts. There is no doubt that when the police officers arrived at the accused's parents' house they were in the course of investigating the commission or possible commission of an offence by the accused at Coromandel Street. 7 As the two police officers made their way to the front door of the house they could hear the voice of a male crying out the word "Danny". They entered the house and saw the accused's father on his knees on the floor talking on the telephone. He appeared to be very distressed and shocked. The officers heard the accused's father saying to the phone, "Danny, what have you done, don't do it, don't kill yourself". 8 Because of the emotional state of the accused's father, Constable Saunders took the phone from him and spoke to the accused. There was a conversation between Constable Saunders and the accused which is not the subject of an objection and during which the accused is alleged to have confessed to shooting the deceased. As the accused was threatening to take his own life Constable Saunders spoke to him for a short period in an attempt to calm him. He then handed the telephone to Senior Constable Hamlin and went to notify other police of what was happening. 9 Senior Constable Hamlin introduced himself to the accused and then asked how he could help him. The accused replied, "You cannot help me, it is finished". The officer then said, "No it isn't, Danny, tell me what happened. Let me try to help you". The accused said, "It is too late, no one can help me. I will tell you exactly what happened". The accused is then alleged to have given an account of what had occurred between himself and the deceased earlier that evening. It is alleged that during this account the accused admitted that he had pushed the deceased on to the ground, pointed the gun at her head, and shot her. It is this statement to which objection is taken by Mr Stratton. 10 Senior Constable Hamlin and Constable Saunders both gave evidence before me. There has been no suggestion in cross-examination of the officers or in submissions to me that either officer acted in any way improperly in speaking to the accused or in what they said to him. In fact it is accepted by Mr Stratton that Senior Constable Hamlin by his efforts in speaking with the accused on the telephone over a number of hours saved the accused's life. 11 Senior Constable Hamlin gave evidence that his purpose in speaking to the accused was to help him and to make sure that he was not going to hurt himself or any other person. He said that when he asked the accused to tell him what had happened, his concern was to find out why the accused was so upset, and what he had done which so distressed his parents. In cross-examination the officer accepted that at the time he commenced to speak to the accused he had a suspicion that the accused had been involved in a crime, and that his father had been shocked by what the accused had said he had done. 12 In the present case there was no tape recording made of the conversation alleged to have occurred between Senior Constable Hamlin and the accused, which part of the conversation contained the admission relied upon by the Crown as to the circumstances in which the accused shot and killed the deceased. As I have already indicated, it is accepted by the parties that if s 108 applies to the conversation in which it is alleged that the admission was made by the accused, there is no basis upon which the admission can be received into evidence. If the section does not apply, it is accepted that the evidence is admissible and I have not been asked to exclude it in the exercise of any discretion I have under the Evidence Act. 13 The Crown Prosecutor has submitted that at the time the admission was allegedly made to Senior Constable Hamlin, any questioning by the officer was not in connection with the investigation of the commission or possible commission of an offence and, therefore, was not "official questioning" within the meaning of that expression in s 108. It was submitted that when Senior Constable Hamlin commenced to speak to the accused on the telephone, he had ceased to be a police officer investigating the commission of an offence and had become a police officer who was attempting to preserve the accused's life. It was further submitted that the purpose of the officer asking the accused what had happened was not to obtain a confession or an admission in the course of investigating any offence, but rather as a basis upon which the officer could reason with the accused and convince him not to take his own life. 14 The provision now found in s 108 of the Criminal Procedure Act was originally enacted as s 424A of the Crimes Act. That section, which was in identical terms to s 108, was repealed when the present section was enacted. Section 424A has recently been considered by the Court of Criminal Appeal in R v Rowe [2001] NSWCCA 1. That case was concerned with the words "in relation to an indictable offence", which were contained in section 424A(4)(c) and are now to be found in s 108(4)(c). The provision applies to an admission "that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person". 15 Justice Fitzgerald, with whom Ireland JA agreed, held that, having regard to the policy behind the section, the words "in relation to" should be construed liberally. As a result the section was taken to apply to admissions made during questioning about an offence of harbouring an escapee (an indictable offence which could not be dealt with summarily without the consent of an accused person) so that they were rendered inadmissible on hearing of a summary offence of goods in custody where the police had no reasonable excuse for the failure to record the interview in which the admissions were allegedly made. It was held that questions asked in relation to an offence by a person who is officially questioned "relate to" that offence. 16 There have been a number of other cases determined by the Court of Criminal Appeal in respect of s 424A of the Crimes Act which are referred to in the judgment of Fitzgerald JA and which have attempted to ensure that the policy behind the section is not subverted. The policy and the history of the provision as is contained in section 108 is set out in the dissenting judgment of Smart AJ in Rowe. The section is clearly a beneficial one, not only to accused persons as a protection against fabricated admissions, but also to the administration of justice generally because of its potential to minimise, if not eliminate, the opportunity for disputes about the making of admissions in criminal proceedings. The approach which was taken by the majority in R v Rowe should be adopted by me in construing the words "in connection with" so as to give the section its widest application. 17 In my view the question asked by Senior Constable Hamlin of the accused about what had happened was a question asked in the course of official questioning notwithstanding that the purpose of asking the question was not to investigate the commission of an offence or at least that was not its sole or principal purpose. The section is not concerned so much with the purpose of the questioning by the investigating official but rather with the circumstances in which the questioning took place. If the legislature had wished to limit the scope of the section to an admission made in answer to questions asked for the purpose of investigating the commission or possible commission of an offence, the legislature could easily have defined "official questioning" to bring about that result. 18 The police officers in the present case went to the accused's parents' home in order to ascertain the whereabouts of the accused so that they could investigate the allegation that they had heard on the police radio. Senior Constable Hamlin accepted in evidence before me that when he asked the accused what had happened, he was attempting to find out what the accused had done to have caused such concern to his father. He also admitted that he had suspected that whatever the accused had done, it was a crime. Senior Constable Hamlin must have at least suspected that whatever the accused had done, it related to the incident at Coromandel Street which he was investigating. 19 I do not believe it can be said, as the Crown Prosecutor submitted, that the investigation of the commission or possible commission of an offence by the accused at Coromandel Street by Constable Saunders and Senior Constable Hamlin had come to an end by the time the officer asked the accused the question to which objection is taken. In my view the questioning of the accused by the police officer was in connection with the investigation of the commission or possible commission of an offence. Therefore, the admission allegedly made by the accused was made in the course of "official questioning" within the scope of that term as used in s 108. 20 Accordingly, the section renders the evidence of the alleged admission inadmissible and, an objection having been taken to the evidence, it must be rejected. ************ Last Modified: 04/19/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.