R v White & ors (No 5) [2012] NSWSC 469

Supreme Court New South Wales

Medium Neutral Citation: R v White & ors (No 5) [2012] NSWSC 469 Hearing dates: 29 March 2012 Decision date: 05 April 2012 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Evidence inadmissible Catchwords: CRIMINAL LAW - evidence - admissions - no electronic recording - s 281 Criminal Procedure Act 1986 - admissions made in Victoria - practice of Victorian police not to electronically record admissions in the field - whether following standard Victorian police practice a "reasonable excuse" Legislation Cited: Crimes Act 1900 Crimes Act 1958 (Vic) Criminal Procedure Act 1986 Evidence Act 1995 Listening Devices Act 1984 (repealed) Cases Cited: CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943 R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408 R v Reid [1999] NSWCCA 258 R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 471 Category: Procedural and other rulings Parties: Regina Rodney Boyd White Representation: Mr J McLennan (Crown) Mr P Bodor QC (Accused) Solicitor for Public Prosecutions Gregory J Goold File Number(s): 2009/203701

Judgment 1HIS HONOUR: The Crown sought to adduce evidence from Detective Sergeant Jeff Cocks of the Victorian Police of an admission made by the accused White following his arrest in Victoria on 4 September 2009. On 29 March 2012 I ruled that the evidence was inadmissible. These are my reasons. 2It is alleged by the Crown that the accused White is guilty of the murder of Saaid (Sid) Zaiter at the Tweed Heritage caravan park at Chinderah on 16 December 2008. Mr Bodor QC informed the jury in his address at the conclusion of the Crown Prosecutor's opening address that the issue was one of self-defence. 3The evidence of Detective Cocks may be summarised as follows. 4On 4 September 2009, as part of a planned operation, police went to the rural property in Victoria where the accused White was living. The primary purpose of the operation was to arrest White (and his co-accused, Jessica Birkensleigh). An advance team was sent in to make the arrests and to secure the property. Detective Cocks and others then moved in. A secondary purpose of the operation was to execute a search warrant. 5Detective Cocks came across the accused White when he was seated on the ground with his hands restrained behind his back. He told him that he was under arrest; cautioned him; and informed him of certain rights. There was then some conversation concerning items on the property that might be of interest to the police (drugs, a gun and some money). 6Other officers attended to the execution of a search warrant. Detective Cocks remained with the accused White. He assisted him in obtaining and taking some pain medication. He agreed to allow White to have some warmer clothes to put on. It got to a point where White was allowed outside when some inclement weather had passed and he was permitted to have a cigarette. The following conversation then occurred: He said: ".... Is this about New South Wales?" I said: "What do you mean? You are still under caution and rights." He said: "Yeah, is this about old mate? I am lucky to be alive, he got set-up by some big blokes." I said: "Were you with him?" He said: "Wrong place, wrong time, someone must of [sic] followed him." I said: "Why would someone follow him?" He said: "He came over to lend some money $1,500 for Christmas." I said: "Where were you?" He said: "My unit in Chindrah [sic] in New South Wales, Heritage Caravan Park." 7Detective Cocks indicated in his statement that after a short pause, White continued, "I will talk more later I am feeling crook now." 8Later, at the Bendigo police station, police conducted an electronically recorded interview with the accused White. Detective Cocks read his notes that were made at the time of the conversation set out above. White replied, "No comment". 9Mr Bodor QC objected to this evidence. It was his contention that the evidence was rendered inadmissible by the provisions of s 281 of the Criminal Procedure Act 1986. The section is in the following terms: 281 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. 10The statements made by the accused White were relied upon by the Crown as "an admission". They are asserted to be something that would be unfavourable, or harmful, to the defence case. This is common ground. 11The statements were made when the police, who were "investigating officials", reasonably suspected that White had committed an offence. Amongst other things they were arresting him on a warrant of apprehension issued in NSW for the murder of Mr Zaiter on 16 December 2008. 12It was not suggested by the Crown that the admission was made in anything other than "in the course of official questioning". There is no doubt about that issue. 13With those matters being established, it is clear that the provisions of s 281 applied. That meant that the evidence was admissible if the admission was electronically recorded, or there was a later electronic recording in which the accused White confirmed that he had made the admission. Alternatively, it was admissible if the prosecution established that there was a reasonable excuse as to why either of those two types of recordings could not be made. 14In relation to the latter, a reasonable excuse includes a mechanical failure, a refusal of the person to have the questioning recorded, or a lack of availability of equipment in the time that it was reasonable to detain the person. This list in s 281(4) is not exhaustive. There clearly was a reasonable excuse for not recording a later confirmation by White that he had made the admission. That is because he exercised his right to silence. The question is whether there was a reasonable excuse for the failure to record the admission at the time it was made. 15Detective Cocks was called to give evidence on the voir dire. It was his evidence that he complied with the standard practice adopted by Victorian police. According to that practice, no attempt is made to make an audio or video recording of admissions made "in the field". Any such admissions are recorded by contemporaneous handwritten notes. The practice is then to conduct an electronically recorded interview with the suspect later, and to read back the notes taken of the earlier admission with a view to obtaining the suspect's confirmation of what had been said. 16Detective Cocks recorded the conversation in his diary. He said that he wrote the notes at the same time as the conversation was taking place. A copy of his notes was tendered on the voir dire. They reflect what appears in his statement. 17The Crown Prosecutor's submission was that there was a "reasonable excuse" as to why there was no electronic recording of the admission. It was that the Victorian police were following their standard procedure. It seemed to be implicitly accepted that if the questioning had occurred in identical circumstances in New South Wales it would generally have been expected that an electronic recording would have been made. 18The Crown Prosecutor was unable to identify any case that has dealt with a similar situation. Mr Bodor did not suggest any precedent either. 19The Crown submission was, however, that the situation was analogous to that in R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 471. In that case, police in Queensland arranged for a complainant in a sexual case to make a "pretext" telephone call to the accused. Admissions were made in the course of the resulting conversation. The call was made from Queensland. The procedure was not contrary to Queensland (or Commonwealth) law and was an accepted investigative tool in that state. It was submitted at trial, and repeated on appeal, that whilst the means by which the evidence was obtained was not illegal, it was improper in that if it had been done in New South Wales, it would have been in contravention of the Listening Devices Act 1984 (repealed). Accordingly, the contention was that the evidence should have been excluded pursuant to s 138 Evidence Act 1995. 20Grove J, with whom Dowd and Sperling JJ agreed (the latter with additional observations), stated: [14] Section 138 is directly focussed upon the obtaining of evidence and in this instance that must refer to the creation of the recording which became the subject of tender, the obtaining of which was indisputably lawful as it was the product of actions in the State of Queensland and governed by Queensland law. The invitation to consider the criminality of what occurred, if it occurred in New South Wales, is to place focus upon the presentation of evidence in distinction from focussing upon its being obtained. I do not need to draw upon it for my conclusion that the appellant's submission should be rejected, but that conclusion seems to me to be more in harmony with the spirit of s 118 of the Commonwealth of Australia Constitution than a conclusion that conduct leading to the obtaining of evidence, expressly declared lawful in Queensland, should be held to have produced improperly obtained evidence by a New South Wales court. 21I do not find the case analogous at all. As Grove J observed that there were two issues: how the evidence was obtained (lawful in Queensland) and the presentation of the evidence (in New South Wales). The issue of significance was the former. In the present case, there is no suggestion of any illegality or impropriety in the means by which the evidence was obtained. The evidence could have been obtained in precisely the same way in New South Wales. The question is not concerned with the means by which the evidence was obtained. It is concerned with the second issue, its presentation (admissibility) in New South Wales. 22The asserted "reasonable excuse" is that it is not the practice of the Victorian police to electronically record admissions made in the field. I was not taken to any authorities in that state that directly bore upon the question of admissibility of evidence of admissions made in the same circumstances that occurred in the present case. Nor was I referred to any practice or procedure that is adopted by police and prosecuting authorities when such a situation arises. 23I subsequently noted that in R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408, there were admissions made by the appellant which were not tape recorded and were not adopted at any later stage. It is recorded in the judgment (at [19]) that the prosecutor told the trial judge at the commencement of the trial that the evidence would not be lead because of the provisions of s 464H of the Crimes Act 1958 (Vic), the broad equivalent of s 281 of the Criminal Procedure Act. For the prosecutor to have taken such a view is, perhaps, explicable because s 464H allows for a discretion to admit evidence of an admission that has not been recorded as required by the section if the court is satisfied that the circumstances are "exceptional" and "justify the reception of the evidence": s 464H(2). That would appear to be, as the Crown Prosecutor in the present case observed, a higher bar to admissibility than is provided in s 281. I have the impression, and this case tends to confirm it, that the likely practice of prosecutors in Victoria would be to not even attempt to argue for the admissibility of admissions not electronically recorded (or adopted) except in unusual and compelling circumstances. 24In my view, what is a "reasonable excuse" should be determined in accordance with the standards applicable to the admissibility of evidence in New South Wales. 25The attendance by the police at the home of the accused for the purpose of arresting him was a planned operation, as I have earlier observed. Equipment for the electronic recording of conversations was readily available. It is mentioned in the statement of Detective Cocks that there was a video recording made of the execution of the search warrant. A conversation with the accused White in connection with the search warrant was recorded. 26In R v Reid [1999] NSWCCA 258 (at [6]), Spigelman CJ observed that police investigations may proceed with such inquiries as the officers wish to pursue, but when it comes to tendering admissions made in the course of such investigations, the "precise and rigorous requirements" of s 424A of the Crimes Act 1900 (a precursor of s 281 of the Criminal Procedure Act) must be satisfied. Smart AJ, with whom Spigelman CJ and Greg James J agreed, observed (at [66]) that "the strongly preferable course is that, in cases of serious crime, interviews ... at crimes scenes be recorded by an audio tape recorder, albeit that it is a pocket one and only one recording can be made". 27The expectation that police officers will use electronic recording devices, even in the field, has persisted to the present day. In CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943, evidence of admissions made when a police officer attended the home of a juvenile to speak to him about a break-in at a local shop was held to be inadmissible upon the basis that the interviewing officer made no electronic recording. The officer explained that the battery in her handheld tape recorder was flat. She did not consider using a video camera that might have been in her police car. She agreed that she could have returned to the police station to obtain another tape recorder, or could have taken the juvenile to the police station and spoken to him there. She elected not to afford him with the opportunity of adopting his admissions at the police station in an electronically recorded interview because she was desirous to avoid processing him into custody because of his age. Fullerton J held (at [20]) that there was no "reasonable excuse" for the failure to comply with the requirements of s 281(2)(a)(i) and (ii). 28There was no unfairness in the manner in which the Detective Cocks dealt with the accused White. This is particularly so given that it was White, not the detective, who initiated the conversation. The detective reminded White of the caution earlier administered. He then made contemporaneous notes that were read back to White a relatively short time afterwards. 29I was not persuaded, however, that there was a "reasonable excuse" for the failure to make an electronic recording of the conversation, particularly given there was equipment to do so that was readily at hand. 30For these reasons I ruled that the evidence was inadmissible.