District Court New South Wales Medium Neutral Citation: R v Linda Maree Troutman [2013] NSWDC 316 Hearing dates: 2/10/2013 - 4/10/2013 Decision date: 02 October 2013 Before: Tupman DCJ Decision: Admissions rejected pursuant to s281 of the Criminal Procedure Act 1989. Catchwords: CRIMINAL LAW - Judgment - Admissibility - verbal admissions not tape-recorded - whether reasonable excuse for not recording. Legislation Cited: Crimes Act 1900 - s112 (2) Criminal Procedure Act 1989 - s281 (2), s281 (4) Cases Cited: R v Reid [1999] NSWCCA 258 R v White and Ors (No 5) [2012] NSWSC 469 Category: Procedural and other rulings Parties: The Crown Linda Maree Troutman Representation: Mr. Fliegner (Trial Advocate for DPP) Mr. J. Quilten (Counsel for the Offender) Ms. E. Macdonald (DPP Solicitor) Mr. D. Kostras (ALS Solicitor) File Number(s): 2012/205155 Judgment 1HER HONOUR: There is a trial before me, a judge alone trial, in which the accused has been arraigned on a charge contrary to s 112(2) that on 30 June 2012 she broke and entered the dwelling house of one Ahmed Camgoz and stole property from him there which included a passport, certificate of citizenship, Medicare card, Centrelink cards and a Nokia mobile phone. It is charged as an aggravated break, enter and steal on the basis of an allegation that she was armed with an offensive weapon at the time. 2Before the trial properly commences there has been a voir dire into the admissibility of certain evidence proposed to be led by the Crown. The Crown is seeking to lead two statements made by the accused to investigating officers at the scene of the offence at the time immediately after her arrest, which the Crown seeks to rely on as admissions. They are objected to on the basis of s 281 of the Criminal Procedure Act which requires that in such circumstances any statements alleged to be admissions must be presented to the Court by way of a tape recording made by, in this case, the police officer, unless the prosecution establishes that there was a reasonable excuse as to why a tape recording could not be made. 3As briefly as possible the facts are, I accept, that a number of police officers were called to the premises at 55 Walker Street, Redfern at about 5.30 on Sunday 30 June 2012. One of those was Constable Rullis. He and another officer attended on the victim of this offence who, I accept, had not long beforehand been robbed by a woman inside his house and a number of his belongings taken. When the officer spoke to him he indicated a limited description, particularly referring to a facial feature of the woman and also told police that this same person had done it before. This occurred between 5.30 and 6.45pm. 4Constable Rullis then left and spoke to two other officers who had arrived, and then at about 6.40pm, with one of the other officers, went down to the ground floor to leave the building. He then saw three Aboriginal women walking through the foyer. The description of the perpetrator of the offence given by the victim was that she was an Aboriginal woman. One of those people turned around and the officer observed the same distinctive facial feature. He asked for them all to stop. He recognised one of them as being the accused in this trial and recognised her as a result of previous contact with her. 5He became suspicious of her on the basis of her demeanour. He asked for an ID but she didn't have any. He told her he had reason to believe that she had committed a break and enter shortly beforehand and was going to search her. She remonstrated. He asked her to put the bag down on a nearby bench. This all occurred in the foyer of the block of units near the letterboxes where there was a wooden slatted bench attached to the letterboxes. He asked if she had any sharp implements in her handbag. She said she did and that she would get them out. She then started to search in her bag for sharp items. 6Two other officers arrived on the scene and Constable Rullis asked for a female officer to be present to search the accused. He then claims that the accused turned her body so that she was blocking his view of her, searching in her shoulder bag. He asked her to stop. She didn't initially. Eventually he asked her to sit alongside on the bench and said he would search the bag. She did so, but there had been a short period of time in which his view of the handbag and what she was doing with it was obscured by her body. 7He started to search her bag on the bench and located a number of items in it, which do not appear to be relevant to this charge. The bag was close to the bottom of the mailboxes, one of which had a broken door and the interior was open. He noticed a blue passport sitting on top of what appeared to be other mail in that open letterbox, and also a plastic sleeve which contained what was in fact a certificate of Australian citizenship belonging to the victim. The passport was that of the victim as well. They were two items which he had just reported as having been stolen during the break and enter offence. 8Under each of those two documents, which were sitting at the top of the pile was a white piece of paper, which was a folded bail reporting slip in the name of the accused, indicating that at least somebody in that name had reported on bail at Redfern Police Station on 26 June 2012, that is four days earlier, at 7.42pm. 9He then had a conversation with the accused and asked her what the passport was. She said she did not know, and at that he arrested her for the break and enter. Again she remonstrated and said that she had nothing to do with it. He gave her the traditional caution and she continued to say she had nothing to do with it and that she understood the caution. He then asked two questions which are the subject of this application. He asked, "How did this bail slip end up in the letterbox under the passport and Australian certificate of citizenship", and she answered, "My slip could have come out of the bag when I was looking for the fits". 10By that she meant the syringes that she was looking for or getting out of her bag. 11The Crown seeks to rely on this as an admission by her that the bail slip had been in her handbag immediately prior to her being stopped by the police and from that the Crown would ultimately seek an inference to be drawn that she had taken it from her handbag and placed it together with the passports of citizenship in the letterbox in an attempt to avoid being found in possession of them. I imagine the Crown's submission will be that the bail slip was put there by accident but connects her to the possession of the stolen items immediately before she was stopped, in a way that would amount to recent possession and be an important piece of evidence to convict her. Those inferences will no doubt be put and will be available, in any event, in this trial because the evidence of the finding and location of those documents will be in evidence before the Court. It is what is said to be her admission that she had possession of the bail slip in her handbag immediately beforehand - that is the admission the Crown seeks to rely on. 12The second question that was put, according to the statement immediately, thereafter is: "Who owns the ticket?" 13Referring to a pensioner excursion bus ticket, and the answer, "It's mine. Someone gave it to me in the city so I could catch the bus". 14This appears to refer to the finding of a pensioner excursion bus ticket together with a Centrelink pension document in the name of the victim in a bin nearby the point at which the accused was being questioned by police. The evidence before me is unclear and somewhat confusing about the timing of this and the detail, but as best I can ascertain the evidence would be that at some stage before Constable Rullis asked the question about the bus ticket some officer or other had found the victim's Centrelink pension document in a nearby bin together with a bus ticket. 15There is no evidence before me on this voir dire to suggest that that bus ticket belonged to the victim, nor why it was that the officer asked the accused who owned the bus ticket. There is no apparent connection between her and the bus ticket. In any event, the Crown seeks to rely on her answer "It's mine" as an admission that she was in possession of the bus ticket immediately before her apprehension by police as the basis for an inference that she was also in recent possession of the victim's Centrelink pension document because these two documents were found near each other in a bin; apparently discarded, not far from the accused. 16Neither of these two conversations was recorded by tape recording. There was a notebook recording of the conversations made but that does not overcome the requirements of s 281. In any event, there is some confusion about whether or not the recording of the relevant pieces of conversation was contemporaneous and more probably than not these conversations were not recorded until some two hours or so after they were had. But as I have said, that is beside the point, given that s 281 does not allow that as a substitution for a tape recording. 17So pursuant to s 281(2), evidence of such an admission is not admissible if a tape recording is not available. Therefore, on a prima facie basis, these admissions are not admissible, but may become admissible if the prosecution establishes that there was reasonable excuse as to why the tape recording could not be made. 18"Reasonable excuse" is defined in s 281(4) as including a mechanical failure or a refusal to have questions electronically recorded. Neither of those applies here. It also includes the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. As I understand it, that is the basis on which the Crown seeks to establish a reasonable excuse here. 19I accept that the officer did not have a portable tape recorder. I accept that it is not the practice for officers to be issued with tape recorders in the field and that there is no approved tape recorder issued to officers to carry with them in circumstances like here, where they were responding to a report of a recent offence. I also accept that they did not expect to find the person who they suspected as having committed this offence when they attended. They were attending because of the report of a crime that had just occurred. 20However, I am not satisfied that the Crown has proved that there was a lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. The officer had, in fact, arrested the accused before he had these further conversations with her. He has agreed that Redfern police station, to which he was attached, was about a kilometre away. 21As a result of arresting the accused he was then obliged to take her to a police station as soon as possible and to enter her into custody complying with all the LEPRA provisions. He had already summoned a female police officer to attend to assist with the search of the accused at a time when he had already announced to the accused that he had reason to believe she had committed the break and enter involving the victim and that he was intending to search her in order to locate the stolen property. His request for a female officer was made after that time and it would have been possible for him to request her to attend with a tape recorder. There was no reason why they could not have remained at the scene whilst a tape recorder was obtained. 22Lest it be thought that the application of this section places investigating officers under unreasonable constraints, I accept that the legislative purpose for this provision was to ensure confidence in the administration of justice to overcome what, for a period of time in New South Wales, was seen to be a tendency to rely on alleged verbal admissions by accused and to ensure that there was in place a regime whereby such propositions could not be put to a Court again, to ensure ongoing confidence in the justice system. 23The provisions are strict and are meant to be so. I accept from the decisions of the Court of Criminal Appeal that they have been referred to as precise and rigorous requirements. That is a decision of the then Chief Justice in the R v Reid [1999] NSWCCA 258. 24The provisions do not seek to deter officers from investigating or in pursing investigations that they might think appropriate and Hulme J in R v White and Ors observed that in Reid's case the then Chief Justice 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, precise and rigorous requirements of what was then the equivalent of s 281 of the Criminal Procedure Act must be satisfied. In other words the Chief Justice sought to draw a distinction between the investigating role of the police and the reliance by the prosecuting authorities, in due course, on any admissions made during the course of such investigations. 25It has not been suggested in this trial that the officer adopted this course in any way that sought to trick the accused. On the face of it, more probably than not, the officer did not even turn his mind to the fact that the likely answer to the two questions he was asking, if admissions, may not have been admissible in subsequent Court proceedings. 26The fact that the accused elected to exercise her right to silence when taken back to the police station, of course even if he had turned his mind to it, would have made it more difficult because he was not in a position then to have her adopt that which she said. There has been no suggestion on this voir dire that his recollection or written record of what is alleged to have been said was not accurate. The question is whether or not the prosecution has established a reasonable excuse as to why a tape recording of these admissions was not made. 27It may be that the outcome in this case would be different if the police were operating in a more remote area, where gaining access to a tape recorder was physically more difficult, but that is not the case here. There are good policy reasons why this particular provision ought be applied strictly and rigorously, and I am not satisfied that the prosecution has established a reasonable excuse as to why a tape recording could not be made. ********** 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. Decision last updated: 22 April 2014