New South Wales Supreme Court CITATION : R v JG (No2) [2009] NSWSC 1055 HEARING DATE(S) : 10/08/2009 JUDGMENT DATE : 5 November 2009 JUDGMENT OF : Buddin J DECISION : Evidence of statement of accused admitted. CATCHWORDS : CRIMINAL LAW - accused charged by ex-officio indictment with murder of his wife - objection to statement provided to police by accused in nature of a missing person's report - statement not tape-recorded - whether at the time accused "was or could reasonably have been suspected ... of having committed an offence" for purposes of s 281 of the Criminal Procedure Act 1986 LEGISLATION CITED : Criminal Procedure Act 1986 CATEGORY : Procedural and other rulings Gonzales v R (2007) 178 A Crim R 232 at 248 Hadjigeorgiou v Crime Commission (NSW) (2007) 174 A Crim R 124 Kelly v R (2004) 205 ALR 274 R v Crowther-Wilkinson and Cowie (2003) 138 A Crim R 473 CASES CITED : R v Frangulis [2006] NSWCCA 363 R v Horton (1998) 45 NSWLR 426 R v Rowe (2001) 50 NSWLR 510 R v Taouk (2005) 154 A Crim R 69 R v Villa [2005] NSWCCA 4 PARTIES : Regina JG FILE NUMBER(S) : SC 2009/779 COUNSEL : P Barrett (Crown) M Buscome (Accused) SOLICITORS : S Kavanagh (Solicitor for Public Prosecutions) Giddy & Crittenden (Accused) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J 5 November 2009 2009/779 – R v JG (No 2) JUDGMENT – Application to exclude statement of accused of 7 February 2002 1 HIS HONOUR: The accused is charged with having murdered his wife, whom I shall refer to as CG, on or about 12 January 2002. The police first became aware of the matter when the accused attended the Gladesville Police Station on 6 February 2002 and informed them that CG was missing and that he had last seen her on 13 January 2002. By arrangement the accused returned to the police station the following day (7 February 2002) and provided them with a signed statement in which he set out in some detail information concerning the nature of his relationship with CG and the circumstances in which, according to him, she had disappeared. 2 Before the jury was empanelled, objection was taken to the admissibility of the statement upon the basis that there had not been compliance with the terms of s 281 of the Criminal Procedure Act 1986 in that the procedure had not been tape-recorded. It was not contended however that the accused should have been cautioned before making the statement. On 9 September 2009 I overruled the objection. These are my reasons for so ruling. 3 Section 281 is in the following terms: Admissions by suspects (1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section: investigating official means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. reasonable excuse includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. tape recording includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording. 4 I was informed that the Crown case against the accused is an entirely circumstantial one. The evidence reveals that CG has not been seen since about 12 January 2002 other than on an occasion when a complete stranger purported to have done so. That occurred in the wake of media publicity about her disappearance and the man in question is said to have recognised her when they had a short conversation in a shopping centre. On the Crown case, that was a false sighting. 5 The CG's body has never been recovered and nor is there any forensic evidence to link the accused with her disappearance. There is however evidence available from which the Crown will seek to have the tribunal of fact infer that CG was the victim of foul play. It is unnecessary, in the present context, to refer to that evidence in any detail. There is also evidence from which the Crown will seek to have the tribunal of fact infer that the accused had both the motive and the opportunity to kill his wife. The Crown will also, I am informed, be seeking to impugn the version of events given by the accused, both to police and to other persons, as being untruthful. 6 In his statement which is the subject of the present application, the accused provided police with the following information: Shortly after MG (their son) was born, CG sustained some form of anxiety attacks. The doctors didn't identify what exactly it was. Her mental state was highly erratic and it became quite overwhelming at times. She was kind of polarised, and her temperament changed all the time. In November 1999, she had a car accident. She was the passenger in a vehicle in her grandmothers funeral procession. As a result of this accident she had a ruptured spleen. The trauma caused an Alopecia type illness (hair loss). She was never the same after this accident. She developed an even greater paranoia about her health. It was all-consuming and she was obsessed by her health. On occasions we had cause to fight. These were verbal altercations only. I don't know exactly why we fought. It was crazy. About three and a half weeks ago CG and I had an argument. I think the date was Sunday, 13th January, 2002. It wasn't overly hostile, however it was long in duration. It began at about 11pm, before it subsided at about two or three hours later. Unfortunately it was never really over completely. It started initially over a holiday we were to take at Avoca where my ex-wife offered the use of a holiday flat. CG ultimately resented this gesture. From this incident we argued about the upcoming move into my parents house. CG was against this move. The remainder of the arguing centred around CG's family. CG and her step-mother have always hated each other, and CG believes that A. was always coming between her and her father. This escalated during a recent funeral, where it was blatant A. kept her father away from her. CG was furious about this and had a real issue with it. She raised this issue during the argument. Towards the end of the argument CG decided to leave. She began packing her bags. This included two large black suitcases. They were soft covers, with pull up handles. She also packed a green garbage bag. She put clothing and make-up in these bags. The last words I remember her saying were, " I've got scores to settle, and then I'm coming back to settle them with you." To my recollection she left about seven or eight A.M the following morning in her own car. She hadn't slept. About a week later CG still hadn't returned, and I moved into my parents house. CG had left before, and I wasn't concerned in the slightest that she hadn't returned. This was consistent with her character. After about two weeks she still hadn't returned. I had no way of knowing where she was, or contacting her. I didn't let her take her mobile when she left. The phone number for this is XXXX XXX XXX. She also took about $3000-$4000 from a Whitmans chocolate box. This money was for emergencies, and kept in the study area. On Wednesday, 6th February, I attended Gladesville Police Station in an effort to see if police could help me contact her. At this stage I still wasn't overly concerned for her well being. I have the kids to look after and they need care. CG has access to Commonwealth and National Australia Bank keycards. These two accounts are exclusively hers. CG doesn't work, so she would be relying on the cash she took and her keycards to survive. There wasn't much money in either of the two accounts. She also had an investment account for her grandmothers inheritance, however she couldn't touch this account. I have no idea where she has gone, but wherever she is she will be requiring heavy prescription drugs due to her condition. 7 As I have said, the accused initially went to the police station on 6 February 2002 where he was spoken to at about 11.30 am by Inspector Kaesler in her capacity as the duty officer. Inspector Kaesler was one of four police officers or former police officers, who gave evidence on the voir dire. She spoke to the accused when he first came in to report that his wife was missing. 8 In a statement which she prepared only recently, Inspector Kaesler recorded the following information concerning her conversation with the accused that day: Because of the passage of time it is difficult to remember exactly what the accused said, but to the best of my memory while I was talking to the accused he said "I'm getting concerned that she has not returned home after so long, she has done this to me before but she has always returned within five or six days. I have asked her before when she has gone, where she's been, but that only makes for more of an argument so I don't ask her." I said "How many times has she done this before?" He said "She has done this on four other occasions, and she was gone for any where between two and five days, but the very last time she went was in June 2001 and she left for five or six days". After the accused had given me the necessary information I told him to go home and collect a recent photo of CG and I told him to check the local hospitals, and to contact the friends of CG and to let them know that she had been reported missing. I told him to come in the next day with the photos and all the contact details of CG's friends and police would obtain a statement from him. He said that he would come in and give the police the photos and the friend's contact details. The reason I asked him to make a statement was just a matter of procedure. As I have indicated previously all the details that are included in the COPS entry were given to me by the accused. I accepted the details as being true and correct. I accepted everything that was told to me on face value, I had absolutely no reason to doubt anything that was said to me. After speaking with the accused I had a conversation with the Detectives, just indicating to them that I had just taken a missing person report and he would be returning the next day with a photo and some contact details of CG's friends. I never at any time considered JG a suspect when he reported his wife missing, and I never mentioned to the Detectives that I considered him a suspect. To be honest at the time I took the report and after I finished work I felt sorry for him, simply because of what he told me. Today I have read the COPS entry that I entered onto system, and I standby everything that is included in the narrative. 9 The COPS entry upon which she relied to create that statement contains the following information concerning what the accused told her: About 11.30 am on Wednesday 6/2/02 the MP's husband attended Gladesville Police Station to seek assistance from police in locating his wife. He stated that the MP had left home as the result of an argument about 3-4 weeks ago and he had not heard from her since. The argument had been over a number of relationship matters which included: 1. Unhappiness in respect of moving in and living with the husband's parents 2. The fact that the couple did not own their own home 3. Dissatisfaction in general with her lifestyle and other issues. JG claims that his wife has left him in this manner on 4 other occasions. Her periods of absence have ranged from 2 days to 5 days. He has not reported her missing on those occasions nor has he established her whereabouts during the periods of absence. … JG states that the last time that his wife went 'missing' was in June, 2001 for a period of 5-6 days. JG states that attempting to discuss the MP's absence's from home created further arguments, so he decided not to press the MP for any details of where she had been. During her periods of absence the MP has not turned to friends or family for safe haven or refuge according to her husband. The MP's husband states that one week after she left home (approx. 22/1/02) he moved out of their rented home and back home with his parents. The MP has abandoned her children, CV and MG and they are currently residing with their step-father/father. The MP's husband claims that she has left home, throwing her clothes into a plastic bag and driving off in a black/dark green Holden Commodore, registered number, XXX-XXX. The MP's husand (sic) states that the argument took place around the 15/1/02 in the early hours of the morning (6am) and was not witnessed by the children as they werre (sic) sleeping. The MP's husband states that the MP has not made any contact with him or their children since leaving. The MP's husband states the the (sic) MP left her home in possession of a Whitman's chocolate box containing several thousand dollars in cash (he estimated to be $3,000). He also advised that the MP has banking accounts at the Commonwealth Bank (Top Ryde or Macquarie Centre) containing substantial amounts of inheritance money. The MP and her husband have a joint cheque account which does not appear to have been accessed by the MP. 10 It is accepted by counsel acting on behalf of the accused that no objection could be taken to Inspector Kaesler giving evidence about the conversation which she had had with the accused on that day. 11 The COPS entry prepared by Inspector Kaesler also includes information which was provided to her by other members of the deceased's family that same day: The MP's father made contact with police at 1pm on 6/2/02 very concerned over the fact that her husband had not reported her missing. The MP's husband had not contacted any of her family or friends to locate her either. The MP's father only learned of her disappearance when he tried to ring her at home last Tuesday. At this time some unidentified Asian persons answered the phone and advised that the MP did not live there anymore. The MP's father then tried to contact her on her mobile phone. This number had been disconnected. The MP's father eventually contacted her husband and found out she had been missing for over two weeks. The MP's husband advised that he had disconnected her mobile phone as he was paying for it. The MP's father stated that he had a very good relationship with his daughter and that she would ring him every day or every second day. He became concerned after returning from a two week holiday and not hearing from the MP. Similarly, the MP's brother had regular phone contact with her and would always ring him if she had had an argument with her husband or if she was upset over an issue. Both persons agreed that the MP would never leave home without taking her daughter CV with her. Both persons agreed that they had never before been told by the MP that she had left home (as stated by her husband). They are convinced that the MP would have told them this as she confided all of her other problems. The MP's brother stated that the MP and her husband were due to go away on a holiday. The brother did not know where they were going but knew that they were staying in accommodation that had been booked by JG's ex-wife. The MP had been unhappy about this. The MP's brother last spoke directly with his sister around 11/1/02. The MP's brother stated that the MP had tried to contact her best friend P (by phone) on 15/1/02. The MP's brother and father confirmed that the MP had inherited around $38,000 from her grandmother and was due to inherit further monies from her grandfather who died recently. The MP's brother stated that her husband had told him she had left and taken $6,000 in cash with her. The MP's brother stated that JG had told him that the MP was probably travelling to Qld to see her father and step father as she had some 'scores' to settle with them. The MP's brother has no idea what that might be about. The MP's uncle was contacted and confirmed the suspicions/concerns of all other family members. He last spoke to the MP a month ago. He also stressed that this was an very strange and out of character thing for her to do. He also confirmed that the MP would not willingly leave her daughter behind. The MP's best friend P was spoken to and confirmed that the MP rang her home on 15/1/02 and spoke with her husband. The MP was very short in her conversation (which was out of character) and stated she would call back. P is very alarmed and concerned as she stated that the MP shares all of her troubles and problems with her and is concerned that the MP has not called back. On the advice of police the MP' s husband is now attempting to contact friends and relatives of the MP. He also gave an undertaking to make inquiries at local hospitals. He has been requested to provide police with a recent photo of the MP. 12 At the time that the accused reported the matter to police, Jayson Macleod was a serving police officer. In the course of his duties he took the accused's statement to which objection is taken. He also gave evidence on the voir dire. In a statement which he also provided recently he made the following observations: Some time later which I think was in the late afternoon JG came to the front counter of the station and I went to meet him. I then escorted him through to the detectives office and I then proceeded to take statement from him at my desk. He then told me the circumstances of his wife going missing and I typed what he told me onto a statement form document. I asked him free flowing questions with the sole purpose of trying to obtain as much information that would assist inquiries to find her. At no time whilst taking the statement did I have any cause to think that what he was telling me wasn't factual. At the time he appeared to be quite nervous. In that I mean he had a definite dry mouth and fidgeted regularly. He was also continually looking at his watch like he was in a hurry. At one stage I said to him- "Are you in a hurry, have you got to be somewhere." He then replied something similar to that he had responsibilities in picking up a child. … At the time I took the statement from JG at no time did I treat him as a suspect in her murder. I was simply getting a statement from him regarding the disappearance of his wife as requested by superior officers. It is normal practice to obtain typed statements in these circumstances. 13 It emerged during the course of his cross-examination that the witness had made an entry in his duty book to the effect that he had attended the accused's premises with other police on 7 February 2002 at a time which it seems was shortly before he took the statement. Those officers were Matthew James Nutt, who is no longer a policeman, and Detective Sergeant Alexander MacDonald. They each also gave evidence on the voir dire although neither of them appeared to have any independent recollection of the events of 7 February 2002. Each of them however had made entries in their duty books about the events of that day. In the case of Detective Sergeant MacDonald, that enabled him to refresh his memory to a limited extent as to what duties he had performed in relation to the investigation of CG's disappearance. His statement contains the following information: My duty book then indicates that I attended [an address] regarding a missing person. I have no specific memory of attending that location. I know that [that address] is the home address of AG and is where JG was living at the time. The missing person referred to in the entry is CG. This location is on the way from Ryde Police Station to Gladesville Police Station. My duty book then indicates that I returned to Gladesville at 4.15 pm. My duty book indicates that at 4.20 pm Detective Nutt and I attended [an address]. I recall attending this address and I know that this is the address that CG was reported as going missing from. I recall attending this address and speaking with a caucasian female who spoke with what I thought was a German accent. We attended this address to see if the new occupant had sighted or had any contact with the missing person CG. My duty book indicates I then attended [an address] and spoke with Angelo Kapsanis. I recall speaking with Kapsanis and again I was enquiring as to whether he had seen or had contact with the missing person CG. I remember making an appointment for him to make a statement and at a later date I took a statement from him. 14 It will now be necessary to refer to some of the evidence which the witnesses gave in a little more detail. 15 Inspector Kaesler gave the following evidence: Q. What did you understand the report you were going to take was related to? A. Missing person report. … Q. The information and material contained in that report, where did that come from? A. From JG. I stood at the front counter and I took notes from him down on a piece of paper. After I finished talking to him, I sent him home to get a photo of CG because he didn't have one with him at the time. I also asked him to do few more enquiries with local hospitals, friends and relatives and I asked him to bring the photo back the next day or that afternoon if he could. I took those details and I went and did the COPS entry. … Q. Was there anything further that needed to be done? A. Well yes, I hadn't taken a lot of details about what CG was wearing. I remember that I'd taken details of a car that she'd left in, but I hadn't taken details of what she was wearing, a full description of her. I hadn't taken details of all the relatives because I think from memory, maybe he didn't have them with him and I needed all that stuff, friends, relatives' details, descriptions, a photo of her. That's procedural we get photos of missing people. We didn't have one at the time. I needed all of that stuff to come back. I needed all of that in a statement about the times she was last seen and to tie that down a little bit further because we needed to make further enquiries because she was still missing. … Q. Following your completion of the COPS entry, did you do anything else in relation to it? A. I did go and speak to our detectives and say look, this is coming through, because it's not my normal business to do an investigation. My business was taking a report of it. It would need to be followed up and I spoke to them to say, "I'm doing a COPS report on a missing person. You're going to have to do follow up when I send it through." When I completed it I disseminated it to our detective sergeant which was Sean Hampstead and I disseminated it to the missing persons unit at the time because the follow-ups had to be done. Q. Did it then become the responsibility of the detectives to pursue it further? A. Yes, that's right. 16 She was then cross-examined about some of the entries which appeared in the COPS report to which I referred earlier. She gave the following evidence: Q. Then you've recorded that, "Both persons agreed that CG would never leave home without taking her daughter, CV, with her", haven't you? A. That was their opinion, yes. Q. They both told you that they had never been told by CG that she'd left home and you've recorded "as stated by her husband". Correct? A. Yes, JG had said she'd left home before, but those persons didn't have knowledge of it. Q. You're recording there using the words in brackets "as stated by her husband", the fact that what you've been told by the brother and father differed from what the husband had told you. Correct? A. The father and the brother had no knowledge of CG going missing from her home before and I had been told by JG that that had happened before. Q. You're recording there, using those words "as stated by her husband" on the COPS entry the fact that this was different from what you've been told? A. JG had provided me the information about CG going missing before. The father and the brother had no knowledge of her going missing before. She may have done that before, but they didn't know about it. Q. They went on to tell you a bit more. "They are convinced CG would have told them this as she confided all of her other problems", and the "this" you're referring to there, if she'd gone away before that she would have told them about it because they were close? A. I can only take on face value what they said because I don't know the dynamics of the family. I don't know whether CG would have told them everything that she did in her personal life. … Q. So the fact you received information from the father where he said he was very concerned over the fact that her husband had not reported her missing for example, that didn't raise any issues in your mind-- A. Mm. Q. --about what the accused had reported to you? A. From my point of view, it warranted further investigation. There were a number of things. There was time, time was of the essence, it was a late report, she hadn't turned up. JG had told me before this has happened on four or five occasions, the last time in June 2001, and on that occasion he'd told me she'd gone missing for 5 or 6 days. He presented to me a picture that this wasn't unusual for her to do this and she came back every time. This one needed follow-up as well because this time, the time delay was a lot longer and she hadn't turned up. Q. Didn't you think the time delay was unusual? A. I really had an opinion at the time that we needed to get cracking on it, needed to get a photo and follow up some enquiries. We needed to find the vehicle, needed to get a description and a photo and make more enquiries at hospitals and other places to see if we could find her. … Q. Didn't you think it was odd that you were being told these things from CG's father and brother which appeared to be matters within the knowledge of the accused and he hadn't told you about it? A. There are lots of things that needed following up. These were other people's versions. These were other people's bits of information and they needed looking at. … Q. He indicated in the first sentence, the father, he was very concerned over the fact that JG had not reported CG missing. Isn't that right? A. No, he is concerned that CG was missing and he thought there's no report. When I told him there was a missing person's report and it had been made by JG, he started to settle down a bit, but I don't know what he was thinking all of the time, I'm not aware of all of the family dynamics, I don't know who knew what about the family and what went on in the past. I had versions from JG telling me that CG had gone missing before and she had done it on more than one occasion and those occasions have never been reported to police. Alright, this time she hadn't come back, so this time he was reporting it because on other occasions, she'd come back within 5 or 6 days. That's what he was telling me. … Q. And he told you that he was very concerned over the fact that her husband had not reported her missing, didn't he? A. At that time he thought he hadn't, so, yes. Q. And he understood his concern to be that there had been this delay by JG in reporting CG missing, isn't that right? A. Sorry. Q. You understood in this conversation that the father was very concerned about the fact that there had been this delay in the reporting of CG being missing? A. No, he was concerned because he thought there had been nothing reported. When he was told there was a missing person's report he started to settle down a bit because he knew then, from conversations from me, that we were following it up and we were starting to look for her. … Q. You say, "to be honest, at the time I took the report and after I finished work I felt sorry for him, simply because what he had told me"? A. I felt sorry for him because his wife was missing, he had young kids at home. He presented to me that he didn't know where she was. He told me that she had left him in the car. I didn't know what to think, but I did feel sorry for him because there were young kids involved, and there was a wife and a mother missing and we needed to find her. Q. What about what the family members had told you? A. Mm-hmm. Q. Didn't that cause you to perhaps stop and think about what the accused had said to you? A. It caused a lot of things to go through my head because you don't know until you start looking into things what has happened. And it is really sort of unwise to jump to a whole lot of conclusions. You have got to look into these things, they have to got to be investigated. You have to ask all the questions, you have to speak to relatives, you have to speak to friends. You have to follow through and find out. You have one version. You have got to accept on face value what people are telling to start with, then you have to look into it . Q. You didn't really have one version by the time you finished work that day, did you? A. I had heard from other people . Q. People very close to CG, correct? A. I think what you've got to accept here is that the people are family members but they're not part of the day-to-day goings on in the family . Q. Well, you had nothing-- A. They can only comment what they think, not what they know. Q. You had nothing before you to suggest that what the father had said in terms of his closeness to his daughter was not right, did you? A. I had nothing in front of my to discount what JG was telling me either. Q. You had people telling you things, surely, that caused you to raise some concerns in your own mind about what the accused had told you? A. No, I had concerns about getting an investigation underway. Q. Well, we've seen from the record that you spoke to the detectives-- A. Mm-hmm. Q. After you spoke to Mr LS. Did you tell the detectives what both the accused and Mr LS had said to you? A. I told the detectives that I had a missing persons report. That it was coming through. That I was disseminating it to them and it was going to need some follow-up. I told them also what I asked JG to provide to me, and I needed them to follow it up the next day because I wouldn't be. … Q. Didn't the possibility that homicide had occurred, didn't it enter your mind that day? A. I can't say that it did because I had been given a face value version by JG that this had happened before, that, you know, his wife had money with her, so when the stuff about the bank accounts comes up and they're not accessed, well, she's got money with her, JG, in a Whitman's chocolate box. There was a whole lot of stuff. I was probably thinking - there's lots of scenarios. She could have been in an accident. She could have been with friends. I don't know what is going on in the family house. I have a version there is sort dynamics about not being happy about not having a house. They've had arguments before that hadn't been discussed. I had versions that this has happened before and she's come back. There are lot of possibilities. Q. One of which is that she had met with foul play, correct? A. That's not what I was thinking at the time. Q. It would have been a matter that surely would have entered your mind in these circumstances that CG may well have met with foul play ? A. Look, certainly where is she? I don't know, I can't say to you, yes, that was in my mind at the time because I don't think it was. My concern upfront was, where is she? We need to start get cracking on trying to find her and we need to get a lot of information from JG and others to start that process to start finding out where she could have possibly gone . What direction she could have possibly gone. What does she look like. And start looking at, you know, some of the things about going missing before, coming back. What was that all about? That wasn't explored in any sort of depth when I first took the report of her being a missing person. All the stuff that I then get from the father and the brother, that's not explored either in any detail. There are versions over the phone. I don't know if they're true or not at that point in time. I don't know the family dynamics and the relationships and whether CG would in fact tell her family all these things that they say she would tell them. I don't know any of that . (emphasis added) 17 Jayson Macleod gave the following evidence in chief: Q. What was the purpose of taking the statement? A. The purpose of taking the statement was to obtain as much detail surrounding the disappearance of CG. Q. At that stage what information did you have about her disappearance? A. The only information I had was contained on the COPS entry and the most significant feature that I remember was that she had been missing three to four weeks. That is what I recall. Q. Did you have any information suggesting to you that any crime had been committed? A. No. Q. At that time of taking the statement did you have any view or opinion about any reason for CG being missing or about her disappearance? A. No. 18 As I have already indicated, it emerged during cross-examination that he had attended the accused's premises that afternoon prior to taking the statement from him. To that extent what appeared in his statement did not accurately reflect what had actually occurred. However it should be observed that the witness prepared his statement in some haste and had not had his duty book available to him at that time. Mr Macleod gave evidence that he was unable to recall having attended at the house. Nor could he recollect why he had done so. He was then asked the following question in cross-examination: Q. That's why you go out to his premises, isn't it, because you have read the COPS entry and the content in it and it creates a suspicion in your mind, isn't that right? A. No. Q. There are things in the COPS entry that contradict some of the things he said when he was at the police station the day before, isn't that right? A. I am not aware of any contradictory - I would have used this as a guideline. I would have taken the statement in my own way in my own fashion. I don't recall drawing any contradictory information contained in the COPS to what was, to what I took in the statement . 19 Matthew Nutt gave evidence that he did not suspect at the relevant time that any person had been involved in the commission of an offence in relation to CG. Although there were entries in his duty book to indicate that he had gone to the premises where the accused was then living and to the premises where he and CG had been residing he said that he had no recollection of having done so or why he (and other police) had gone there. 20 Detective Sergeant MacDonald gave the following evidence: Q. As at 7 February 2002 what were you concerned with in relation to CG? A. Sorry, can you just repeat that? Q. Police were making enquiries in relation to CG, is that right? A. That's right, yes. Q. What were those enquiries as at 7 February 2002? A. As at the 7th the investigation, I guess you could call it, was in its infancy, we were only made aware that she was reported missing, I think, on the day before. I only remember the event of being made aware of her being distinctly missing on that morning of the 7th. I became aware of it and then our Detectives Office obviously were making enquiries to try and locate the missing person. Q. You had read the COPS entry that had been made the day before? A. Yes. Q. And you read it on the morning of the 7th? A. That's correct, as I recall, yes. 21 The accused neither gave nor called any evidence on the voir dire. Accordingly, the only evidence which is before me is that given by the four police officers on the voir dire. I have no reason not to accept the critical parts of it. It is true that there are some aspects of the evidence of former officers Jayson Macleod and Matthew Nutt that are not entirely accurate. They relate however to matters of a peripheral nature and do not affect their overall credibility. I have no reason to doubt the reliability of the other two witnesses. I also observe in passing that there was no challenge to the accuracy of the contents of the accused's statement. It contained the usual jurat and was signed and adopted by the accused as being an accurate record of what appeared therein. 22 I turn now to consider the question as to whether it was necessary for there to be compliance with s 281 of the Criminal Procedure Act. The mischief which the section seeks to address is patently clear. In Kelly v R (2004) 205 ALR 274, Gleeson CJ, Hayne and Heydon JJ observed: Though for many years before the 1960s legal rules had been developed in some detail to regulate the proof of confessions to police officers, from the 1960s on concern about that topic increased. The key questions, from case to case, were whether a confession was made; if so, in what terms; whether it was to be excluded as involuntary; whether it was to be excluded in the court's discretion either as having been obtained unfairly, or as having been obtained illegally or improperly; and whether it was reliable. All these issues were capable of being affected by the means by which the confession was perceived, recorded or recollected, and then transmitted to the court. Particular concern was directed to allegedly fabricated confessions. … But the problem went well beyond possible fabrication. Disputes could arise in circumstances including the following: (a) where an oral confession was not noted down; (b) where an oral confession was noted down, whether contemporaneously (for example, by a police typist laboriously recording each question and answer) or otherwise, and whether by a single police officer, or by two or more police officers acting separately or collaboratively; (c) where an oral confession was reduced to writing but not signed by its maker; (d) where an oral confession was reduced to writing by police officers before being signed by its maker; and (e) where a confession was written out by its maker. The disputes could turn on questions not only of fabrication, but also of misunderstanding, misrecollection, coercion, or oppression in a broad sense. Considerable amounts of court time were taken up, generally in the absence of the jury, in resolving disputes about confessions. Considerable amounts of police time, too, were taken up in interviews slowly recorded by officers operating typewriters or writing in notebooks. Grave allegations were commonly made suggesting police perjury, brutality and pressure. Unfounded though many of these allegations may have been, they were damaging to public confidence in the criminal justice system. Over time the courts, law reform agencies and legislatures began to respond to this state of affairs. In particular, as audio recording became more common in commercial and social life, and as the necessary equipment became more efficient, easier to operate, and cheaper, it was increasingly suggested that, either as a matter of sensible practice or as a precondition to admissibility, police interviews in criminal investigations should be electronically recorded. Pilot studies were conducted which suggested the utility of this technique. It was hoped that the introduction of a reliable means of recording confessions would not only save police and court time directly, and reduce the need for police officers to spend long periods at court, but also encourage more, and earlier, pleas of guilty. All this would save public money as well as improving the integrity of the trial process and the efficiency of the police. … As a result, it came to be viewed as a commonplace, not only in circles favourable to defence interests but also in police circles, that, despite its financial cost, the electronic recording of police interviews, particularly video-recording, would generate real advantages. It would be useful in providing a means of establishing exactly what was said; in proving that requirements for cautioning and other formalities had been complied with; in narrowing the time within which it could be alleged that threats had been made; in helping to estimate the fairness and propriety of the questioning; and in helping to evaluate, by assessment of the demeanour and manner of the interviewee in responding, the reliability of what was said. (pars 22-25, 29) 23 McHugh J made observations to similar effect. His Honour said: Acting on the recommendations and findings of various Commissions and Inquiries, all Australian legislatures have enacted legislation that seeks to protect the rights of accused persons during a period when their rights are vulnerable by reason of the mistaken recollection or lies of police officers. The enactments of the various legislatures are broadly similar in principle although they differ in detail. In general, they identify the period of vulnerability as commencing with the time when the facts raise a suspicion of the accused's guilt. In most jurisdictions, the period is thereafter open-ended. The enactments recognise that miscarriages of justice may occur when there is no mechanical record confirming an allegation by police officers that the accused has confessed to a crime or made a damaging admission after he or she was or ought reasonably to have been seen as a suspect. The evident policy of the enactments is that it is against the interests of justice to admit evidence of such confessions or admissions unless there is a mechanical record of such confession or admission or an acknowledgment of it, or in some jurisdictions that exceptional circumstances justify the admission of the evidence. (par 96) 24 See also R v Horton (1998) 45 NSWLR 426 at 438. 25 Although what the accused said in his statement to police was clearly exculpatory, it is common ground that it nonetheless constitutes "an admission". That is because it contains material that "may turn out to be harmful for the defence": R v Horton (supra) at 438. As I have said, it is clear that the Crown will seek to rely upon the material in an endeavour to achieve that purpose. The evidence clearly establishes that at the relevant time there was tape-recording equipment available at the police station which could be used in the event that it was required. 26 The critical issue to be determined is whether at the time the accused made the "admission", he "was or could reasonably have been suspected by an investigating official of having committed an offence" within the meaning of s 281 (1)(a) of the Act. Most of the decided cases have been concerned with other issues raised by the section. One such example is whether the "admission" was made "during the course of official questioning": see Kelly (supra). Other cases have considered issues such as what constitutes a "reasonable excuse" for not tape-recording an interview and the meaning of the phrase in s 281(1)(c), "in relation to an indictable offence": see R v Rowe (2001) 50 NSWLR 510. The fact that the section provides an important protection for an accused person was emphasised by Smart J (at 521). 27 Turning then to the principles which govern the present issue, I observe that in R v Crowther-Wilkinson and Cowie (2003) 138 A Crim R 473, Hidden J, in construing the predecessor to s 281(1)(a), said that "that paragraph creates both a subjective and an objective test. In my view, both tests would be satisfied by a level of suspicion falling short of that necessary to justify an arrest" [at 476]. 28 In R v Taouk (2005) 154 A Crim R 69 James J, with whom Hislop J agreed said: It was pointed out by counsel for the appellant that the word "could" in the expression "could reasonably have been suspected" in s 281(1)(a) was different from the word "ought" in the corresponding part of s 424A of the Crimes Act 1900 (NSW) , a predecessor of s 281, and it was submitted that the expression "could reasonably have been suspected of having committed an offence" was wider than the expression "ought reasonably to have been suspected of having committed an offence". Counsel for the appellant referred to an unreported judgment of Bell J in R v Crowther-Wilkinson (unreported, Supreme Court, NSW, No 70096 of 2001, 8 May 2002), in which her Honour said (at [31]) with reference to s 424A of the Crimes Act and the then s 108 of the Criminal Procedure Act , which was in the same terms as the present s 281: It may be that the class of persons who "could reasonably have been suspected by an investigating official of having committed an offence" is broader than the class of persons who "ought reasonably to have been suspected by an investigating official of having committed an offence". I accept, as was submitted by counsel for the appellant, that s 281 of the Criminal Procedure Act is in different terms from the former s 424A of the Crimes Act and is also in different terms from the interstate legislation considered by the High Court in Kelly and Nicholls . I also accept that there could be cases in which a person "could" reasonably have been suspected by a police officer of having committed an offence, even though it could not be said that he "ought" reasonably to have been suspected by the police officer of having committed an offence. I also accept that s 281 of the Criminal Procedure Act is legislation of the same nature as that considered by the High Court in Kelly and Nicholls , has the same purpose as that legislation and should, in accordance with the views of the majority in Nicholls , be given a purposive interpretation. However, in my opinion, even accepting that a purposive interpretation should be given to s 281, it is necessary that some regard be had to the actual language of s 281 and some effect be given to the word "reasonably" in the expression "could reasonably have been suspected". A person could not reasonably have been suspected by a police officer of having committed an offence, unless something has been said or done which would provide some grounds for a police officer reasonably suspecting that the person has committed an offence. (pp78-9, 81) 29 In a separate concurring judgment, Hall J observed: The meaning and content of the phrase in s 281(1) "could reasonably have been suspected" may be considered in light of authorities in other fields where "reasonable suspicion" or the expression "reasonably suspects" as concepts have been examined. Whilst those authorities have arisen in different legislative contexts, some guidance may be obtained although due caution must be made having regard to the particular terms of s 281 and its evident legislative purpose. (i) As to the word "suspected" in s 281(1)(a), a "suspicion" that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust amounting to "a slight opinion, but without sufficient evidence": Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303 per Kitto J. (ii) As to the word "reasonably" in s 281(1)(a), it has been observed that a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence: Queensland Bacon (at 303). In the context of the legislation there in question (s 95(4) of the Bankruptcy Act 1924-1960 (Cth) ) "reason to suspect" was taken as referring to something which, in all the circumstances, would create in the mind of the reasonable person in the person in the position of the payee in that case an actual apprehension or fear that the situation of the payer is the actual fact which the provision described (a mistrust of the payer's ability to pay his debts). (I note here the possible significance in this formulation of the word "would" as distinct from "could" in s 281(1)(a). (iii) As to the statutory provision for the issue of a search warrant under s 679(b) of the Criminal Code (Qld) -- in particular the phrase "there are reasonable grounds for suspecting that there is in any house ..." etc . "Suspicion" in its ordinary meaning is a state of conjecture or surmise where proof is lacking. Some factual basis or foundation must exist under the provision to ground the suspicion: Walsh v Loughnan [1991] 2 VR 351. It is also necessary to identify the subject matter of suspicion. The basis of the suspicion referred to in s 281(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, 48 ACrimR 246 at 253-254. See also R v Rondo (2001) 126 ACrimR 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 s 281(1)(a) could have committed an offence is insufficient . The questions arising from the appellant's submissions on ground one of the appeal ultimately are: (a) Whether the evidence establishes that, at the time the admission was made, the appellant was or could reasonably have been suspected ... of having committed an offence. (b) Whether the police officer at the Burwood Police Station to whom the appellant spoke, Constable Munro, was an investigating official for the purposes of s 281(1)(a). (c) Even assuming that the police officer was an investigating official within the meaning of the section, whether the admission was made in the course of official questioning , a concept which is connected by the definition of that expression with the investigation of the commission or possible commission of an offence . (at pp97-8) (emphasis added) 30 His Honour's remarks were cited with apparent approval in R v Frangulis [2006] NSWCCA 363 at paras 14-15 and in Gonzales v R (2007) 178 A Crim R 232 at 248. 31 In Hadjigeorgiou v Crime Commission (NSW) (2007) 174 A Crim R 124, Giles JA, with whom Santow JA agreed, observed: In George v Rockett (1990) 170 CLR 104 a search warrant could be issued if it appeared to the justice that there were "reasonable grounds for suspecting" that there was in a place, amongst other things, anything as to which there were "reasonable grounds for believing" that it would afford evidence as to the commission of any offence. The Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said, at 115, that it was necessary to bear in mind that suspicion and belief were different states of mind. Their Honours continued, at 115-116; 253-254 - "Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942, at 948, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove".' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay [its] debts as they became due' as that phrase was used in s95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (at 303): 'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in subs(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.' The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, … ". (p 129) 32 Counsel for the accused accepts that the evidence from each of the police officers is to the effect that they did not regard the accused as a suspect at the relevant time (the subjective test). Although counsel contended that that evidence should be approached with caution, the main focus of his submissions was directed to an argument that at the relevant time the accused "could reasonably have been suspected" of having committed an indictable offence (the objective test). In seeking to make good that submission, counsel relied upon the following matters: (1) the fact that the accused had waited for 3-4 weeks before reporting that his wife was missing; (2) the fact that, according to CG's father, the accused had not contacted either family or friends to report that she was missing; (3) the fact that, according to CG's father, the accused had told him that he had disconnected CG's mobile phone, a consideration that was contended to be at odds with his assertion to police that he was seeking their assistance to locate her; (4) the fact that, according to CG's father, brother and uncle, CG would never have left home without taking CV with her, a consideration that was also contended to be at odds with the accused's assertion to police that she had done so; (5) the fact that, according to members of CG's family, CG would have confided in them if she had previously left home, a further consideration that was contended to be at odds with the accused's assertion to police that she had left home on a number of previous occasions; (6) the fact that many domestic related homicides are committed by partners of the deceased person; (7) the fact that three police officers had gone to the premises where the accused was then residing on 7 February. It was submitted that the reason why they had gone there was because their suspicions about the accused had been aroused from what they (or at least Detective MacDonald) had read in the COPS entry. That being so they were determined to obtain a statement from him and in order to do so they had gone to his premises to ensure that he attended at the police station. 33 In light of that combination of factors it was submitted "that the accused could reasonably be suspected of having committed an offence associated with his wife's disappearance. The obvious offences to which suspicion could reasonably be aroused are the forms of homicide." 34 Counsel also relied upon the fact that many of the seven factors which I identified were specifically referred to in the Crown's Case Statement as being matters which would be relied upon in its case against the accused. However the significance of those matters had to be considered at the relevant time, which was of course when the statement was taken. Clearly enough, things may now be capable of being seen in a somewhat different light but it is of course completely irrelevant that a person may subsequently become a suspect. That does not "cause the section to have any retrospective effect": see R v Villa [2005] NSWCCA 4 [at para 53]. As it happens the accused was not charged until many years after the alleged offence. In fact I was informed that he was charged by way of an ex-officio indictment on 6 February 2009 following an inquest which was conducted in May 2008. 35 So far as the seventh and final matter referred to by the accused is concerned, it is clear that the evidence is silent upon the question as to why the police went to his premises. In my view, it is quite understandable that the officers now have no independent recollection about why they did so. Those events occurred more than 7½ years ago. There are a number of perfectly plausible explanations for their having done so, none of which require acceptance of the accused's assertion as to their motivation. I place no weight upon that aspect of that matter. 36 Before the accused's ultimate submission could be accepted, the following questions would need to be addressed: (1) Was CG actually missing? (2) If so, was she dead or reasonably presumed to be dead? (3) If she was, was her death attributable to a homicide? (4) If so, was it a homicide for which the accused bore responsibility? 37 As counsel for the accused readily acknowledged the investigation into CG's disappearance was then in its infancy. True it is that various matters which had been raised by members of CG's immediate family called for further inquiry. Police had however responded by immediately embarking upon an investigation which was designed to address those issues. Indeed, the accused was asked by Inspector Kaesler to undertake various tasks himself to assist the investigation. (I observe in passing that Inspector Kaesler was unlikely to have requested the accused to undertake those tasks if she had regarded him as being a suspect). 38 In my view, the evidence supports the proposition that, as at the relevant time, the police investigation was to be regarded as an investigation into a report about a missing person and nothing more. After all, CG had been missing for a little more than three weeks in circumstances in which, on the information that was then available to the police, she had had an argument with her husband and had left home. Moreover, that was something which according to the accused (the person who was most likely to know of her movements) she had done on previous occasions. It follows in my view that the evidence falls well short of creating the relevant suspicion which is required by s 281. Accordingly, I formed the view that the accused's statement of 7 February 2002 did not fall within the scope of s 281(1)(a) with the consequence that the application to exclude it must fail. ********** ********** 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.