R v Tarantino (No 5) [2019] NSWSC 1056

Supreme Court New South Wales

Medium Neutral Citation: R v Tarantino (No 5) [2019] NSWSC 1056 Hearing dates: 16 August 2019 Date of orders: 16 August 2019 Decision date: 16 August 2019 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: Evidence rejected Catchwords: EVIDENCE – detective's notes from an unrecorded interview with the accused in 1999 – whether evidence excluded by operation of s 281 of the Criminal Procedure Act 1986 – no reasonable excuse for not conducting a recorded interview confirming the admission – evidence rejected Legislation Cited: Criminal Procedure Act 1986 Cases Cited: Nicholls v The Queen [2005] HCA 1 R v Tarantino (No 4) [2019] NSWSC 1055 Category: Procedural and other rulings Parties: Regina (Crown) Vinzent Tarantino (Accused) Representation: Counsel: P Barrett; V Garrity (Crown) B Rigg SC; P Coady (Accused)

Solicitors: Office of the Department of Public Prosecutions (Crown) Watsons Solicitors (Accused) File Number(s): 2016/347591 Publication restriction: Not to be published prior to the conclusion of the proceedings at first instance

EX TEMPORE Judgment

(Revised from Transcript) 1. The Crown seeks to lead evidence from Christopher Powell, a former detective in the New South Wales Police Force, in relation to part of an interview conducted with the accused on 22 July 1999. In the relevant part of the interview, Mr Powell stated that the accused denied that around the time of Ms Diec's disappearance he had ever "borrowed a white van through [Geoffrey] Maurer or Maurer's cousin Daniel, or the person Roger", instead saying he had, "hired a van to move furniture from his family home in Edgecliff, to his father's home at 10 Second [Street], Granville". 2. The Crown seeks to adduce this evidence on the basis that it can establish that those statements were false, and that they establish a consciousness of guilt. 3. Senior Counsel for the accused, Ms Rigg SC, objects to the admission of this evidence, not on the basis of relevance. Instead Ms Rigg submitted it should be excluded by the operation of s 281 of the Criminal Procedure Act 1986 4. Section 281 relevantly provides: 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. 1. Ms Rigg contended that the prosecution has failed to establish that there was a reasonable excuse as to why a tape recording of a kind referred to in subparagraph 281(2)(a)(ii) could not be made. To explain and then consider that contention, it is necessary to say something further about the chronology of events.