New South Wales Court of Criminal Appeal CITATION: R v Frangulis [2006] NSWCCA 363 HEARING DATE(S): Friday 23 June 2006 JUDGMENT DATE: 24 November 2006 JUDGMENT OF: Giles JA at 1; Grove J at 2; Hidden J at 3 DECISION: Appeal allowed in part, matter remitted to District Court. CATCHWORDS: CRIMINAL LAW: - Appeal by Crown under s5F, Criminal Appeal Act - admissibility of evidence - admissions to police officer - whether s281 of the Criminal Procedure Act complied with - admissions to insurance investigator - investigator acting on behalf of police as well as insurer - whether unfair to admit that evidence. Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 R v Taouk (2005) 154 A Crim R 69 CASES CITED: R v Em [2003] NSWCCA 374 The Queen v Swaffield, Pavic v The Queen (1998) 192 CLR 159 EM v Regina [2006] NSWCCA 336 PARTIES: Regina (Crown) Spiros Frangulis (respondent) FILE NUMBER(S): CCA 2006/426 COUNSEL: G Smith SC with J Girdham (Crown) P Byrne SC with G Thomas (respondent) SOLICITORS: S Kavanagh (Crown) Jordan Djundja Lawyers (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2005/11/0661 LOWER COURT JUDICIAL OFFICER: Keleman DCJ IN THE COURT OF CRIMINAL APPEAL 2006 / 426 GILES JA GROVE J HIDDEN J Friday 24 November 2006 REGINA v Spiros FRANGULIS Judgment 1 GILES JA: I agree with Hidden J. 2 GROVE J: I agree with Hidden J. 3 HIDDEN J: The respondent, Spiros Frangulis, is awaiting trial in the District Court upon a charge of dishonestly damaging property by means of fire with a view to making a gain: s197(b) of the Crimes Act. The charge arises from a fire which occurred at a restaurant at Hurstville, owned and operated by the respondent, on 20 May 2002. After a lengthy voir dire hearing, the learned trial judge rejected certain evidence tendered by the Crown. The Director of Public Prosecutions brings the present appeal against that ruling, pursuant to s5F(3A) of the Criminal Appeal Act. 4 In his judgment, his Honour summarised the Crown case in this way: The Crown alleges that during the course of Monday 20th May 2002, the accused went to his restaurant at Hurstville on two separate occasions during the afternoon and on each occasion on entering the premises turned off the alarm system and on leaving the premises on each occasion activated or turned on the alarm system. The Crown alleges that according to alarm records for the restaurant, on the last of those two occasions that the accused attended the premises on this day, he turned off the alarm when he entered the premises at about 3:30pm and then turned on or activated the alarm when he left the premises at about 4:25pm that afternoon. No further alarm signals were monitored according to alarm records held by the alarm monitoring security company until about 7:10pm that evening when, on the Crown case, a series of alarm activations commenced, emanating progressively from a number of sensors, including smoke sensors, within the premises. These activations continued until approximately 7:20pm according to the alarm records. It is the Crown case that these various alarm activations which were recorded from 7:10pm were caused by a fire that broke out on the ground floor of the restaurant. After the fire was extinguished by members of the fire brigade a number of time delay incendiary devices were found on each of the two floors of the restaurant. Those devices on the ground floor were in a burnt and melted condition, however the devices found on the upper floor were largely intact and consisted of 2 litre plastic milk containers filled with an accelerant, methylated spirits. In some of those containers candles had been placed in such a way that the candles extended up from the bottom of the milk container through methylated spirits with the top of the candle extending beyond the level of the liquid and through the top of the container, which candles on the Crown case enabled the ignition of the accelerant to be delayed following the lighting of the candles. In addition to the discovery of these time delay incendiary devices in the accused's restaurant, investigating fire brigade and police officers at the scene, also concluded that there were no signs of forced entry to the restaurant prior to the arrival of the fire brigade. 5 In the early hours of 21 May 2002, the day after the fire, the respondent made a statement to Detective Sergeant Thornton at Hurstville Police Station. On 27 May and 16 July 2002 he took part in recorded interviews with Mr Robert King, a private investigator engaged by the insurer of the restaurant business. In the statement of 21 May and the interview of 27 May the respondent gave an account of his movements on the afternoon of 20 May to the effect of that summarised by his Honour, that is, that he went to the restaurant twice, each time turning off the alarm when he entered and turning it on again when he left. As his Honour said, alarm records show that there was no further alarm activity until the outbreak of the fire. The Crown relies on what the respondent said in the statement and the recorded interviews as admissions, tending to prove that he was the last person to have been in the restaurant before the fire started. Of the two interviews with Mr King, argument focused upon the first of them, that of 27 May 2002. Although the later interview dealt with matters relating to the setting of the fire, it was in that first interview that the respondent recounted his movements on the day in question. 6 His Honour rejected the tender of the statement and the interviews, and it is against that ruling that the present appeal is brought. The admissions in the statement of 21 May and the interview of 27 May are crucial to the Crown case, such that it is substantially weakened, if not eliminated, by their rejection. The Crown prosecutor in this Court acknowledged that the rejection of the interview of 16 July, of itself, would not have that effect. Accordingly, this Court's jurisdiction under s5F(3A) is properly invoked. Mr Byrne SC, who appeared with Mr Thomas for the respondent, did not submit the contrary. It is necessary to consider the statement and the interview separately, as they raise different considerations. The statement to Detective Thornton 7 The statement to Det Thornton of 21 May 2002 is a typewritten document in the familiar form of a witness statement. Although expressed as a continuous narrative, it was the product of the respondent's answers to a series of questions which the detective had asked him. That interview was not tape recorded, although there were facilities at the police station to do so. His Honour rejected the statement by the application of s281 of the Criminal Procedure Act, relevant provisions of which are as follows: (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, … … (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. 8 There is no dispute that Det Thornton was an "investigating official", within the meaning of subs (1)(a). That expression is defined in subs(4) to include a police officer. His Honour found that the statement was the product of "official questioning" for the purpose of subs(1)(b), given the manner in which it was obtained. That finding is not challenged in the appeal. However, his Honour also found that at the relevant time the respondent was suspected by Det Thornton of having committed an offence: subs(1)(a). It is that finding which is challenged. Detective Thornton had given evidence on the voir dire that, at the time he obtained the statement, he did not regard the respondent as a suspect. Rather, he saw him as a victim of the offence, being the owner of the restaurant. His Honour did not accept that evidence, in the light of other evidence on the voir dire. 9 The fire brigade officers who extinguished the fire found the incendiary devices, and it was apparent that the fire had been deliberately lit. Two police officers, Constable Condon and Inspector Lewis, arrived at the scene shortly after the fire was extinguished. They became aware that the fire had been deliberately lit by delayed incendiary devices and, although neither of them said so expressly, his Honour was satisfied that they also became aware that there were no signs of forcible entry into the restaurant. 10 The respondent had been dining with members of his family at the time of the fire, although he came to the scene later. Nevertheless, Constable Condon considered him, as the owner of the business, one of a number of possible suspects for setting the fire. He did so in the light of the information to which I have referred, together with information he received during the evening about the alarm records. Inspector Lewis formed the view at the scene that anyone with a financial interest in the restaurant would have to be regarded, until excluded, as a possible suspect. 11 Detective Thornton arrived at the scene later in the evening. The time delay incendiary devices were pointed out to him and he was told that there were no signs of forcible entry. He also drew the obvious conclusion that the fire had been deliberately lit. His Honour was satisfied that the detective's knowledge of the incendiary devices and of the absence of any sign of forcible entry "were capable of supporting the formation of the opinion and did result in the formation of the opinion" by the detective that the accused could have been involved in setting the fire. 12 His Honour continued: As the fire had been deliberately lit using time delay incendiary devices and as Detective Thornton knew there were no signs of forced entry, I am satisfied that an obvious class of persons upon whom suspicion of being involved in deliberately lighting the fire must necessarily have fallen and who would have been regarded as suspects by Detective Thornton or any reasonably competent investigating official were those who had access to the premises and any financial interest in the business. The accused as an owner of the business clearly fell within that class of suspected persons. 13 His Honour added that, because time delay incendiary devices had been used, the fact that the accused was dining some distance away when the fire started could not have removed him from that class of suspects. His Honour observed Det Thornton to be an experienced investigator. He referred to evidence that the detective looked at a number of financial documents in the restaurant while he was there and that, in the course of taking the respondent's statement, he explored whether he might have had any financial motive to set the fire. His Honour concluded that "at least from the time Det Thornton asked the accused at the scene to attend the police station and to make a statement and during the course of taking the statement, he suspected the accused of being involved in deliberately lighting the fire". Expressing his conclusion in the words of s281(1)(a), his Honour said that the respondent "was or could have reasonably have been suspected by an investigating official of having committed an offence". 14 His Honour approached s281(1)(a) guided by the following passage from the judgment of Hall J in R v Taouk (2005) 154 A Crim R 69 at [160]-[161]: …The basis of the suspicion referred to in s281(1)(a) is the state of mind of an investigating official. That state of mind is more than mere surmise. Applying a similar approach as has been applied with respect to search warrant legislation, it is one arrived at on the basis of material that is capable of supporting the formation of an opinion, even if only a slight opinion, that the person in question (the accused) could have committed an offence. As to this approach generally, see George v. Rockett (1990) 170 CLR 104 at 115-116. See also R v. Rondo (2001) 126 A. Crim. R. 562 at 576. In summary, the suspicion must be one which could reasonably have been held by an investigating officer at the relevant point in time, namely, the time when the admission was made. Whether the suspicion satisfies the specified requirement as to reasonableness, is to be determined by the existence of grounds for the suspicion, which grounds must be based on or sourced in facts that do or tend to implicate the accused in possible criminal conduct of the relevant kind, an indictable offence, and that therefore are capable of giving rise to or supporting the requisite state of mind. It follows that a mere possibility that a person referred to in s281(1)(a) could have committed an offence is insufficient. 15 Hall J's observations were made in a case in which the focus was upon the objective test in s281(1)(a), that is, whether a person "could reasonably have been suspected" of having committed an offence. In the present case his Honour's primary finding was that Det Thornton did in fact suspect the respondent, although he added that the objective test was also satisfied. The matters raised by Hall J are relevant to the application of both tests, subjective and objective. 16 The Crown prosecutor in this Court submitted that it was not open to his Honour to find either test satisfied. He referred to Det Thornton's evidence that he was not aware of the alarm records until about a month after the statement from the respondent was taken. As I have said, it is from those records that the inference can be drawn that the respondent was the last person to enter the restaurant before the fire. Detective Thornton's evidence was that it was only after he became aware of them that he considered the respondent to be a suspect. The Crown prosecutor also pointed out that the detective had no reason to be aware that a limited number of people had access to the restaurant until the respondent revealed in the course of making the statement that the only other people having a key to the premises were his wife and his two sons. 17 In oral argument there was some examination of the evidence bearing upon whether Det Thornton might have become aware of the alarm records before taking the respondent's statement. However, his Honour made no finding about that matter, nor about the Detective's knowledge of the persons having access to the restaurant. As I have said, he was content to base his conclusion upon the evidence that the detective was aware that the respondent was the owner of the restaurant, that the fire had been deliberately lit by time delay incendiary devices and that there was no sign of forcible entry. 18 The question on this appeal is whether that conclusion was open to his Honour on the evidence. In Taouk (supra) James J at [70] referred to authority for the well established constraints upon this Court's review of the findings of fact of a primary judge. In my view, it was open to his Honour to have reached the conclusion he did on the basis which he expressed. The evidence was capable of supporting a finding that Det Thornton saw the respondent as a suspect, and it was certainly an adequate basis for a finding that he could reasonably have been regarded as such. To adopt the expression used by Hall J in the passage from Taouk quoted above, the evidence admitted of more than "a mere possibility" that the respondent could have committed an offence. 19 That being so, it is unnecessary to determine another issue which arose in oral argument and which was the subject of supplementary written submissions by the parties. The issue was whether, for the purpose of the objective test in s281(1)(a), there should be imputed to Det Thornton the knowledge of other police involved in the matter: in particular, the information Constable Condon obtained on the night in question about the alarm records. Put another way, should the objective test be considered only in the light of the knowledge of the "investigating official" conducting the "official questioning", or should regard be had to the whole of the information available to the police involved in the enquiry? The issue is an important one. However, it was not considered by his Honour and need not be determined in the present appeal. 20 The Crown prosecutor also argued that his Honour fell into error in the passage from his judgment quoted above, saying that he appears to have based his conclusion about the application of s281 upon a finding that the applicant fell within a "class" of persons who might be regarded as suspects in a case such as this. The Crown prosecutor pointed out that the section makes no reference to classes or categories of persons but, rather, focuses upon the suspicion which might attach to an individual. Reading his reasons as a whole, however, it does not appear to me that his Honour approached the matter in that way. He was saying no more than that in a situation such as this suspicion might fall upon a person having a financial interest in the business, and this was part of his reasoning towards a conclusion that the respondent himself was, or could reasonably have been, regarded as a suspect. It was ultimately a conclusion about the respondent as an individual, not merely as a member of a class. 21 Section 281(2) deals with situations in which there was "a reasonable excuse" for the fact that a tape recording was not made. No such issue arises here. Accordingly, I am not persuaded that his Honour fell into error in rejecting the respondent's statement to Det Thornton. The interview with Mr King 22 His Honour rejected the evidence of the interviews with the insurance investigator, Mr King, upon the basis that to allow the admissions made in them would be unfair to the respondent, having regard to the circumstances in which they were made: s90 of the Evidence Act. As I have said, the appeal is directed to the first of those interviews, although his Honour's reasoning is applicable to both of them. 23 Mr King was formerly a detective in the NSW Police Force. He made his own inquiries about the fire and made an appointment with the respondent to interview him on 27 May 2002. The respondent's insurance broker advised him to have a solicitor present at the interview, and he arranged for a solicitor, who was also a personal friend, to attend. His Honour found that, prior to the interview, Mr King had reached an agreement with Det Thornton that he, Mr King, would undertake an investigation into the fire, including interviewing the respondent, not only on behalf of the insurance company which had engaged him but also on behalf of the police (except for the forensic scientific examination of exhibits). 24 The interview was conducted at the respondent's home. The solicitor, who had previously himself been an insurance company investigator, told the respondent at the outset that he had a contractual obligation to answer Mr King's questions if he wanted to pursue an insurance claim. Mr King at that stage saw the respondent as one of a number of suspects. However, he did not disclose that at any stage before or during the interview and he did not caution the respondent. Nor did he reveal that he was conducting inquiries on behalf of the police, and his Honour was satisfied that he chose not to do so to avoid the possibility that the respondent would decline to participate in the interview. 25 The respondent gave evidence, which his Honour accepted, that if he had known that he was a suspect or that Mr King was acting on behalf of the police, he would not have taken part in the interview without seeking legal advice. He said that he understood that he was contractually bound to answer Mr King's questions if he wanted the insurance claim to proceed. The solicitor gave evidence, which his Honour also accepted, that he had told the respondent before the interview that Mr King's investigation was a normal part of processing an insurance claim and that, if he had known that the respondent was viewed as a suspect or that Mr King was acting on behalf of the police, he would have provided the respondent with advice about the options open to him, including informing him of his right not to participate in the interview. 26 Otherwise, there was no suggestion of any impropriety in the conduct of the interview, nor was there any challenge to the reliability of the admissions made in it. After considering s139 of the Evidence Act and the common law position, his Honour concluded that Mr King was not obliged to disclose that he suspected the respondent or to caution him. However, his Honour continued: …I am satisfied that Mr King prior to the first record of interview, while not obliged to inform the accused or his solicitor that he suspected the accused of lighting the fire or to caution the accused, should have on the grounds of fairness informed the accused or his solicitor of his changed role and in particular that he was now conducting inquiries on behalf of the police as well as the insurance company…If Mr King prior to commencing the first recorded interview, had informed the accused and/or his solicitor that he suspected the accused of lighting the fire or had cautioned the accused, although not obliged to do either of these things, I am satisfied that it would not have been necessary on the grounds of fairness to have informed the accused or his solicitor of his changed role. 27 His Honour then referred to the respondent's evidence, which I have summarised above, about his understanding of the purpose and scope of the interview. His Honour found unfairness for the purpose of s90 of the Evidence Act in that evidence, together with Mr King's failure to disclose his suspicion of the respondent or to caution him, and to disclose that he was acting on behalf of the police, "choosing to conceal his dual role" to avoid the possibility of the respondent exercising his right to decline to be interviewed. His Honour concluded: It is appropriate to note that while each of the identified circumstances when considered in isolation would not have warranted the exclusion of the admissions contained in the records of interview with Mr King pursuant to section 90, I am satisfied that the accused has established that their combined effect requires that consequence. 28 His Honour identified the relevant question for the purpose of s90 to be whether, in the circumstances in which the admissions were made, it would be unfair to the respondent to use the evidence against him, referring to the exposition of the applicable principles by Howie J in R v Em [2003] NSWCCA 374 at [104]: …It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated... There may be an overlap between issues of voluntariness, reliability, fairness to the accused and the public policy discretion... 29 Before us, the Crown prosecutor challenged his Honour's finding that Mr King was acting on behalf of the police at the time of the interview. This faces the same difficulty as the challenges to his Honour's findings in respect of the statement to Det Thornton but, in any event, I do not find it necessary to decide the matter. The Crown prosecutor's alternative submission was that, accepting his Honour's finding about Mr King's role, it was not open to him to conclude that there was relevant unfairness. This submission I find persuasive. 30 For the respondent, Mr Byrne submitted that his Honour's conclusion was a matter of judgment, and that it had not been shown that he had taken into account any extraneous or irrelevant consideration or failed to consider any relevant matter. What had happened as a result of the arrangement between Det Thornton and Mr King, he argued, was that the interview of the respondent, who was a suspect, was delegated to an insurance investigator so as effectively to avoid the requirement of a conventional police interview accompanied by a caution. In those circumstances, he submitted, the respondent's right to silence had been impugned: cf. The Queen v Swaffield, Pavic v The Queen (1998) 192 CLR 159, in the joint judgment at [91]. 31 His Honour was very critical of the arrangement between the detective and the investigator, as he found it to be. He pointed out that Mr King had an "arguably vested interest" on behalf of the insurance company in the outcome of the investigation, and he said that the arrangement could be seen as having deprived the respondent and the community of an independent police investigation of the fire. One can see the force of those observations. It may well be that what occurred was imprudent, if not improper. In fairness to Det Thornton, it should be said that he intended to conduct a formal interview with the respondent after further evidence had been gathered, but was transferred to other duties before he had an opportunity to do so. When other police later sought to interview the respondent, he declined to be interviewed on legal advice. 32 Conduct on the part of Mr King or Det Thornton, or both, which might be characterised as improper or unfair is relevant to the exercise of the discretion under s90, but is not determinative of it. As is clear from the passage in Em cited above and, indeed, from the terms of the section itself, the basal question is whether it would be unfair to the respondent to use the evidence at his trial. That also appears from the decision of this Court in a related appeal in which the principles expounded by Howie J came under consideration, decided after argument in the present case: EM v Regina [2006] NSWCCA 336, especially per Giles JA at [75]-[76]. With respect, although his Honour recognised that as the test, he does not appear to have applied it. 33 As the Crown prosecutor pointed out, there was nothing in the evidence to suggest that the respondent was led to believe that whatever he said in answer to Mr King's questions could not be used in evidence against him. If the interview had been conducted upon the basis which the respondent believed, and Mr King had not been acting on behalf of the police and had not seen him as a suspect, I can see no reason why evidence of it could not have been led. It would have been admissible, just as an unguarded incriminating statement to a relative or friend would have been. 34 Viewed in that way, there appears to me to be no basis for his Honour's conclusion that it would be unfair to the respondent to admit the evidence. I note that it was objected to also on the basis of ss84, 135, 137, 138 and 139 of the Evidence Act. His Honour found it unnecessary to consider those other bases, but expressed the view that each of them had insufficient merit and would not have succeeded. 35 Accordingly, evidence of the interview with Mr King was admissible. I would allow the appeal in part, and remit the matter to the District Court to be dealt with in accordance with these reasons. ********** 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.