The ERISP

Hunt CJ at CL

At 415

The appellant (Kerrie Anne Clarke) was found guilty by a District Court jury of an armed robbery of a post office store, but not guilty of attempting to use the weapon involved with intent to prevent the lawful apprehension of herself. Judge Christie QC imposed a sentence of penal servitude for nine years, consisting of a minimum term of six years and an additional term of three years.

The Crown case was that the appellant and a man entered the post office store - both wearing a type of balaclava, the appellant carrying a 0.22 calibre rifle - and they demanded money. The postmistress fled and, when she returned, the cash register and approximately $300 was missing. The two people who had been in the store were observed to leave the area in a stolen vehicle driven by another person. As a result of a message broadcast over the police radio, that vehicle was chased but lost. It was found abandoned shortly afterwards. A search was made in the area for the offenders. The appellant was seen with a rifle, and she was pursued. When caught, there was a struggle for possession of the rifle. When subsequently interviewed, the appellant declined to answer any questions in relation to the armed robbery, but she told the police that she had had her finger on the trigger of the gun solely for the purpose of shooting herself. The postmistress subsequently made an identification from photographs of the appellant as the offender carrying the weapon.

At 416 to 417

The fifth ground of appeal was that the judge erred when he refused to exclude the electronically recorded interview with the appellant. There were a number of arguments put in support of this ground. Most of them went only to the decision of the judge not to exercise his discretion to exclude it and, again, the exercise of that discretion will be revisited by the trial judge at the new trial. There was, however, one issue of principle argued, and to that issue I now turn.

The interview commenced with the usual confirmation that the appellant had earlier been informed of the nature of the inquiries being made and of her right to a copy of the audio tape and (if required) of the video tape made of the interview. The only inquiry indicated to her was one into an armed robbery at the Paxton post office/general store. The appellant confirmed that she had earlier agreed to be electronically interviewed. She gave her name and date of birth. The interview then continued:

"Q. ... Is it the case that you told me, prior to us ... commencing this interview, that you didn't wish to say anything to us in respect to the allegation regarding the armed robbery at the Paxton Post Office? A. Yes.

1. And is that currently still the situation, that you do not wish to answer any questions specifically in regard to that matter? A. Yes.

1. I'll just canvass with you a couple of other matters whilst we're here. Is it the case that you were taken into police custody somewhere in the vicinity [of] ... about just after 1.00pm today? A. Yes."

There followed a recitation of various injuries which the appellant had received during the struggle for the rifle at the time of her arrest, for the purpose of recording the injuries on the video tape. Next, the appellant was invited to explain why she had not released the weapon when called upon by the police to do so, and why she had been attempting to pull the trigger. All of those questions so far were quite legitimately directed to the second charge against the appellant, of attempting to use the weapon with intent to prevent her lawful apprehension. She eventually explained to the police that she had been attempting to harm herself when she discharged the rifle.

There were then further questions, prefaced by an acknowledgment that the appellant did not wish to comment about the allegation that she had been involved in an armed robbery. These questions related to her possession of the rifle and the circumstances of her arrest, but two of them clearly also related to the armed robbery - whether the rifle was hidden under a blue coloured jacket (which corresponded with the description given of clothing worn by the offender carrying the rifle) which she had in her hand at the time of her arrest, and whether she was prepared to say from whom she had obtained the rifle. She agreed with the first and she declined to answer the second. In answer to another question as to whether she wished to say anything further about "any aspect" of what had happened, the appellant replied "No. I'll talk to George first". She agreed that it may be the case that, after doing so, she would wish to speak to them again. She told the independent officer who obtained her adoption of the interview that she had no complaints about the manner in which she had been interviewed.

At 417

The submission was made on appeal that these answers - if not the whole interview - should have been excluded upon the basis that the circumstances in which the admissions were made were such as to make it unfair to use them. It was argued that it was improper and unfair to continue to question a person once that person had purported to exercise his or her right of silence.

At 419

In my view, those sections provide appropriate and sufficient protection for suspected persons, and it would be mischievous to engraft upon those sections a rule of practice such as exists in South Australia. It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. No doubt the evidence will inevitably be excluded if there is any suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure.

I am not persuaded that the judge was required in the present case to reject either the whole of the recorded interview or the particular questions to which reference has been made. The appellant never refused to be interviewed, or to answer any questions at all. All that she is shown as having said is that she did not wish to say anything about the allegation against her that she had been involved in an armed robbery. She appears to have been willing to give her version of everything which happened after the armed robbery. All of the questions which were asked were relevant to her possession of the rifle and the circumstances of her arrest. There was no undue insistence that she answer questions upon the issue about which she did not wish to be questioned. The fact that two or perhaps three of the one hundred or so questions asked were relevant also to the armed robbery does not, to my mind, make the conduct of the police either improper or unfair, or require the rejection of the answers upon the basis either that it would be unfair to use them against the appellant or that their truth was likely to have been adversely affected.

Smart J

At 431

The facts and circumstances of the offence and the contentions of the parties are set out in the judgment of Hunt CJ at CL. I agree with what his Honour has written as to the 1st, 2nd, and 4th grounds. I am in general agreement with what his Honour has written as to the 5th ground.

It is not uncommon for an accused to intimate that he does not wish to answer any questions and then to decide to answer some questions or to make a statement or explanation. There may be something in a police statement or summary of the situation which the accused regards as wrong and needs correction or something which needs explanation. There are many possibilities.  It would be unwise to hold that every time an accused states that he does not want to answer questions, some further questions are put and answers arc given or explanations or statements made such answers, statements or explanations are inadmissible. Everything depends on the circumstances. There may, for example, be no challenge to the truthfulness or accuracy of the alleged replies.

Howie AJ

At 433

I agree with the orders proposed by Hunt CJ at CL and the reasons for those orders. I simply wish to add a comment on the directions on identification evidence in amplification of what his Honour has written.

Wood CJ at CL

At 427

The appellant was convicted, at her trial before Newman J and a jury, of the murder of Michael O'Hara-Fitzgerald. She now appeals against this conviction.

The Crown case:

It was the Crown case that the appellant stabbed the deceased in the chest, at the home they shared with a third person, Cheryl Douglas, at Sandy Beach, during the evening of 18 December 1995. Each had been drinking alcohol during the afternoon and evening preceding this event. The appellant was a very seasoned drinker, and was involved in a relationship with Ms Douglas, which was characterised by repeated arguments. One such incident in May 1995 had led to a charge of assault being preferred against the appellant. They had been arguing this day, and as a consequence Ms Douglas had earlier called police to the house. The appellant drove away from the premises in Ms Douglas' car, but returned some time later.

At 428

Constable Evans then asked the appellant: “What happened, Anne?” She replied: “He fell on the knife.” He asked: “Where is the knife now?”, to which he received the reply: “I haven't got it.” Constable Evans pronounced words of arrest and gave her a formal caution.

…

After being taken to the Coffs Harbour Police Station, the appellant took part in an interview that was recorded on audio and video tape. In the course of this interview, the appellant said that Ms Douglas had been fighting with the deceased and had stabbed him. She did not adopt or otherwise confirm the answer given earlier that night to Constable Evans. It was her position that she could not remember saying those words, and she expressed surprise at the notion that the deceased had fallen on the knife.

At 431 and 432

At the heart of this appeal is the question whether the expression “admission”, where used in s 424A of the Crimes Act, should be taken to have the same meaning as that given to it in the Evidence Act 1995…

At 434

It is the fact that the prosecution was not relying upon the truth of the appellant's answer that the deceased had fallen on the knife. Its relevance, so far as the prosecution was concerned was confined to the inference which the jury was invited to draw, namely that the appellant had been functioning cognitively within a time proximate to the stabbing, and hence had formed the intention required for murder.

At 437 and 438

Whatever may have been the position at common law, or under the Crimes Act, s 410, I am of the view that it is now necessary, for the reasons previously mentioned, to have regard to the Evidence Act, in determining precisely what is the “admission” of which s 424A of the Crimes Act speaks. The dictionary definition is certainly wide enough to include, within that expression, any form of representation, whether by conduct or by oral or written statement, so long as it is “adverse to the (maker's) interest in the outcome of the proceedings”. That expression is itself sufficiently wide to encompass both inculpatory statements and exculpatory statements of the kind discussed in Piche v The Queen that may turn out to be harmful for the defence.

At 439

The provision is protective legislation, and in the absence of a clear legislative intention to the contrary, I am unpersuaded that it should be read down in the manner suggested by the respondent.

I do not regard it as fatal to the appellant's submission in this case that the answer was not adverse to her interests in so far as it became available, once admitted, as proof (assuming that she had been holding the knife), that the deceased had fallen on it without any act on her part. Its real significance in the trial was its use by the prosecution, to answer the “defence” of intoxication. In this respect the answer was most definitely adverse to her interests.

Sully J

At 441

I agree with Wood CJ at CL.

Ireland J

At 441

I agree with Wood CJ at CL for the reasons given by his Honour.

Wood CJ at CL

1. The appellant was indicted for the murder of Zi Qiang Jin. At his trial, before Sully J and a Jury, he was convicted of that offence and sentenced to imprisonment for fourteen years, with a non parole period of ten years and nine weeks (taking into account seventeen weeks broken custody pre-sentence). He now appeals against that conviction.

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46. It was submitted that his Honour erred in admitting into evidence this ERISP, over objection, since it occurred at a time when the appellant was in custody, and in circumstances where he had indicated to police that he did not wish to participate in it…

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54. There is no absolute rule that an interview conducted in the face of an objection by a suspect, or continued in the face of an indication that he or she does not wish to participate any further in it, should be rejected if tendered in evidence. This was made clear in Kerrie-Anne Clarke NSWCCA 31 October 1997, when Hunt CJ at CL said:

"It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. No doubt the evidence will inevitably be excluded if there is any suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure."

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56. In an appropriate case, it may well be that despite some initial reluctance, the person interviewed may elect to continue with the interview, and even see an advantage in providing further information with a view to dispelling doubts, or answering matters which may give rise to suspicion. Any apparent impropriety in continuing to question a suspect may turn out, in those circumstances, to be of such little weight as not to justify exclusion of the ERISP as evidence. Each case must be determined upon its own facts, and in particular by reference to the extent to which there is any unfair pressure placed upon the person being interviewed, or unfair advantage taken of his position, for example because of his age, vulnerability, lack of familiarity with the English language and so on. Moreover, in any weighing exercise the probative value of the evidence needs to be taken into account.

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58. In the light of its limited probative value, and the appellant's acknowledgment that he had told lies to the police, and in the light of the way that the interview was down-played in the summing up, I am of the view that it would have been preferable, with the advantage of hindsight for it to have been excluded. I am not, however, persuaded that its admission led to any risk of a miscarriage of justice having been occasioned. This ground has not been made good.

McClellan CJ at CL

87. I agree with Wood CJ at CL.

Smart AJ

88. The facts and the background are set out in the judgment of Wood CJ at CL with which I agree. I wish to add few comments…

Gleeson CJ, Hayne and Heydon JJ (would dismiss the appeal)

1. The appellant appeals against the dismissal by the Court of Criminal Appeal of Tasmania of his appeal against conviction by a jury sitting in the Supreme Court of Tasmania. The appellant was charged with murdering Tony George Tanner on or about 23 November 1990. He was tried with Michael John Marlow ("Marlow"), whom the jury also convicted of murder, and Gary Hilton Williams ("Williams"), whom the jury acquitted both of murder and of being an accessory after the fact.

…

8. The appellant and Marlow appealed to the Court of Criminal Appeal of Tasmania. The appeals were dismissed. Both the appellant and Marlow applied to this Court for special leave to appeal. Only the appellant succeeded, and only on one point: whether a statement by the appellant to police officers on 4 March 2000 ("the impugned statement") was a "confession or admission" which should not have been received by the trial judge in view of its non-compliance with the requirement of video-taping contained in s 8(2)(a) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) ("the Act"). The impugned statement was made between half an hour to an hour after the video recording of an interview of the appellant by police officers had ceased and no further questions had been asked.

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14. The appellant then made some telephone calls. He was charged, fingerprinted and photographed. It was then proposed that he be taken to the Launceston General Hospital for the purpose of obtaining samples of blood and hair. Just before the appellant and accompanying officers got into the car, the appellant made the impugned statement. He said, according to Detective Sergeant Lopes and Detective Pretyman:

"Sorry about the interview - no hard feelings, I was just playing the game. I suppose I shouldn't have said that, I suppose you will make notes of that as well."

The police officers did not respond to this statement. They made no note of it. They also did not attempt to return the appellant to the interview room with a view to making a video-recording of the appellant repeating what he had said so as to attract s 8(2)(b) of the Act. Detective Sergeant Lopes thought the appellant's statement was made thirty to forty minutes after the video-recording had ceased and the appellant had left the video interview room; Detective Pretyman thought it took place nearly an hour after those events.

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19. The one material issue in this case was whether the impugned statement was "made in the course of official questioning".

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45. A person may make admissions during a period in which police officers are conducting official questioning without those admissions being responsive to any particular question. This can arise in two ways. First, an answer proffered may simply be quite unresponsive or unrelated to the particular question. Secondly, deliberately or fortuitously, the persons asking the questions may fall silent, and the person who is with them may, whether because of a desire to fill the silence or for some other reason, confess. The legislation does not in terms require that the statement be made "in response to a question put" as s 86 of the Evidence Act 2001 (Tas) does, for example. That language is significant, because it appears in s 86 of the Evidence Act 1995 (Cth) and s 86 of the Evidence Act 1995 (NSW) as well. The language may be contrasted with the use of the expression "in the course of official questioning" in s 85(1)(a) of the three Acts. "Official questioning" is defined in each of the three Acts as meaning "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". That is in substance the same as the definition appearing in s 8(1) of the Act. The contrast between the language of s 86 of the three Acts and the language of s 8 of the Act suggests that a confession which is entirely non-responsive to any question, or is uttered during a pause in the flow of the questions without being stimulated by any particular question, is one which falls within s 8 of the Act. The words "in the course of" do not require that there be any causal connection between the admission and the official questioning. Thus "a monologue in response to a general enquiry about what happened" has been held to be in the course of official questioning for the purposes of s 85 of the Evidence Act 1995 (NSW) and an answer volunteered by the person being questioned is in the course of questioning even though it is not directly responsive to any question.

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53. In this matter "the course of official questioning" ended when Detective Sergeant Lopes ceased to ask questions and said at 9.17pm: "[W]e'll conclude the interview". Other activities of the appellant not related to official questioning and other police procedures not involving questioning then took place. No further question was asked which triggered the impugned statement. To treat the impugned statement as having been made in the course of official questioning would be to ignore the statutory language. The impugned statement in this case is in the same position as the statement made by the accused in R v Julin where, after questioning had ceased, the accused had been arrested and cautioned, and driven half a kilometre to the scene of the crime during which time no conversation took place between him and the police officer: "[t]he official questioning of the accused concluded prior to the car trip when he was arrested and cautioned ...".

54. The Crown submitted that the use of the word "interview" in ss 8(2)(a) and (b) and (3)(b)-(d) of the Act was significant, and that that word was synonymous with "the course of official questioning". There is authority against that submission. It is not necessary to reach a view on the Crown's submission in order to decide the present appeal. Either "official questioning" is identical with an "interview" with an accused person, or it is broader, because it cannot be narrower. If the impugned statement was not made "in the course of official questioning", it does not matter whether or not it was made in an interview. For the reasons set out above, it was not made in the course of official questioning.

McHugh J (would dismiss the appeal, but only on the proviso)

73. In my opinion, evidence of the "confession or admission" by the appellant was not admissible. Section 8(2)of the Act requires the judge at a criminal trial to reject evidence that a person made a confession or admission to a police officer if two matters are proved. The first is that the officer suspected, or ought reasonably to have suspected, that the person had committed an offence. The second is that the person made the confession or admission in the course of "questioning by a police officer in connection with the investigation of the commission or the possible commission of an offence". However, the section provides four broad exceptions to this general rule. The first is where the confession or admission was videotaped. The second is where an acknowledgment of the confession or admission was videotaped. The third is where "the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why" a videotape of the confession or admission and the acknowledgment of it could not be made. The fourth is where "the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence."

74. In the present case, police officers suspected that the appellant was a party to the murder for which he was convicted. The alleged "confession or admission" was made in connection with the questioning of the appellant in connection with the investigation of the murder. For the purpose of s8, a confession or admission so made is made "in the course of official questioning". No videotape of the confession or admission or any acknowledgment of it was made. Neither at the trial nor in this Court did the prosecution contend that there was a reasonable explanation why a videotape of the confession or admission or an acknowledgment of it could not have been made. In addition, the prosecution did not contend at the trial that the interests of justice justified the admission of evidence of the confession or admission. In these circumstances, evidence of the confession or admission was not admissible at the appellant's trial.

Kirby J (would dismiss the appeal, but only on the proviso)

136. The purpose of contested words: I agree with much of the joint reasons on the remaining issue. Those reasons have explained the background against which the provisions of the Act in issue in this appeal have to be read. For some time, the problem of confessions to police, and specifically of so-called "police verbals" bedevilled the administration of criminal justice in Australia, as in other countries. It came under particular attention in decisions of this Court in the 1970s and 1980s.

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144. I accept the force of the majority's reasoning. As in most cases of statutory construction reaching this Court, there are arguments both ways. In the end, however, I have concluded, alike with McHugh J and Slicer J, that the words "in the course of official questioning" extend to circumstances such as those in which the impugned statement was made. I must therefore explain the steps that lead me to this conclusion.

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149. On the face of things, therefore, an interpretation of "in the course of official questioning" that was confined to the room at police headquarters in which video recording equipment was set up, and which did not extend to words used by the accused soon after departing that room when he was still in police detention, would seriously undermine the statutory "purpose" of requiring a video recording of such exchanges. It would also undermine so much of the "purpose" as was addressed to responding to the decision of this Court in McKinney and the direction which that case obliged judges to give to juries concerning the danger of "police verbals". Arguably, the impugned statement would fall within that description. The starting point of analysis, then, is that the statement would appear to fall within a legislative provision addressed generally to remedy contested and unconfirmed statements to police officers by accused suspects whilst detained by them.

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161. Confronting the appellant with the impugned statement on video recording would not have been a difficult task in the circumstances of the present case. When the impugned statement was made, the police detaining the appellant were still in the vicinity of the police building, only minutes away from the video recorder. It would have been a small inconvenience to return the appellant to the videotape recording facility to confront him with the accusation of his alleged additional statement. Then, the jury would have had the benefit of a prompt and contemporaneous assertion by police of what the appellant had said and a recording of the appellant's immediate response.

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170. Instead, using the language of the Act, I would conclude that the "course of official questioning" begins, in the case of an accused person who is or ought reasonably have been suspected of an offence and who is later tried for a serious offence, when that reasonable suspicion arose, or ought reasonably to have arisen, in the minds of the police officers detaining that person. It is not terminated or interrupted by silence on the part of the police officer. It includes responsive or unresponsive statements made whilst the accused is detained by the police officer in connection with the investigation of the commission, or the possible commission, of an offence. The official questioning is not concluded at the termination of any formal interview, the termination by police of video recording or other decisions wholly within the power of police officers. The termination only occurs when the investigation of the offence whilst the accused person is in police detention is terminated either by the release of that person or by the action of police in bringing the accused to a judicial officer upon a charge laid by the police officer concerning an offence.

Gleeson J (would dismiss Coates’ appeal)

3. I also agree, substantially for the reasons given by Hayne and Heydon JJ, that in the matter of Coates v The Queen the appeal should be dismissed…

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5. Bearing in mind the two rulings of the trial judge, and the context in which they were made, it is clear that he found that the appellant did not consent to the videotaping of the part of his conversation with the police during which the admissions presently in question were made. The appellant sought and obtained an interruption of the videotaping for the purpose of having a conversation that was not on tape. That finding was upheld by the Full Court. Miller J, in the Full Court, said that "the initiation by Coates himself of the off-video interview" was "a critical factor" in the decision that the evidence was admissible.

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11. As the facts of the present case illustrate, there could be many reasons why a person would consent to being questioned on videotape about some matters, but not about others. It is difficult to understand why the legislature would have intended to distinguish between the case of a person who, at the commencement of police questioning, refuses to consent to any videotaping, and one who terminates or suspends consent, temporarily or indefinitely. It is the dependence upon the consent of the interviewee that gives rise to the present question, together with the obvious practical possibility that, during the questioning, consent might be terminated or suspended. There is nothing in the section to suggest that consent, once given, covers all that follows without any opportunity for bringing it to an end. It would be unfair if that were so. A person who, at the outset, expects to be questioned about a particular matter might find that the questioning develops in an unforeseen manner. The most natural meaning to give s570D, in those circumstances, is that termination or suspension of consent has the same consequence, during the period of suspension, or following termination, as an initial refusal to consent. That is the way the trial judge and the Full Court approached the section, and I think they were right.

12. What is the competing possibility? Let it be supposed that a suspect initially consents to an interview being videotaped. Suppose that, at some point in the interview, the police ask the suspect what he knows about X, a criminal. Suppose that, for reasons perhaps related to the known propensities of X, the suspect says, or indicates, that he will answer the question, but not on camera, and the camera is switched off. Section 570D is concerned only with the admissibility of evidence; specifically, the admissibility of admissions made to the police. It does not regulate the power of the police to ask questions, and it does not impose any obligation on a person to answer questions. It does not require the whole, or any particular part, of an interview to be videotaped; it simply deals with a consequence of the absence of a videotape record of an admission. In the example given, whatever the effect of s 570D might be, it does not depend upon whether the person being interviewed is accompanied by a lawyer, or upon whether contemporaneous written notes are made of what is said off camera, or upon whether, when the videotaping is resumed, the police repeat, in front of the camera, what had occurred while the camera was switched off. If some discretionary ruling relating to a matter of fairness is required, those circumstances might become relevant, but they have nothing to do with the question of construction of s 570D now under consideration. The argument for the appellant must be that, by temporarily withdrawing or suspending consent to videotaping, the suspect can say what he pleases about a particular topic without any risk that it might be tendered in evidence against him. That must be so, regardless of what precautions, if any, are taken to eliminate the possibility of dispute or fabrication. It would be so, for example, even if the suspect's lawyer is present and taking notes. That seems a very curious result. It is not one that is required by the language of s 570D, and it does not advance any rational legislative policy. I prefer the view of the section that was taken in the Supreme Court of Western Australia.

McHugh J (would allow Coates’ appeal)

15. The first issue in Coates' appeal is whether the trial judge erred in holding that disputed oral admissions, allegedly made by Coates during a break in a videotaped interview with the police (and not subsequently confirmed on video), were admissible in evidence. That issue turns on whether the break in the interview constituted a separate interview to whose videotaping Coates did not consent and, if so, whether that constituted a "reasonable excuse" for not videotaping the alleged admissions within the meaning of s 570D of the Criminal Code (WA).

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22. The Crown alleged that Coates had asked Adam John Davis to pick up Garabedian, who worked as a prostitute, and give her a "hot shot" - a heroin overdose. Garabedian was the key Crown witness in other criminal proceedings against Coates and Hoy. Davis said that, for a payment of $2,000, he agreed to give Garabedian the "hot shot". He said that, using Hoy's car and mobile phone, Nicholls' clothes and a bag of heroin supplied by Coates, he picked up Garabedian one night in August 1998…

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25. The admissions allegedly made by Coates were unrecorded oral statements to police officers while Coates was in police custody being questioned about Garabedian's death. Detective Senior Constable Hawley gave evidence that, during a videotaped interview, Coates asked to go to the toilet. The videotape was stopped for about 45 minutes (this was the second time the videotape was stopped for a supposed "toilet break"; the first break lasted for four minutes). Hawley testified that, when the videotape was turned off, Coates said to him and Detective Senior Constable Hutchinson: "What are my options?", "What can I do?", "How much will I get?" and "I haven't even got 5 years in me. I'll neck myself." Two other officers, Detective Sergeant Kays and Detective Senior Sergeant Byleveld, gave evidence that they were called into the interview room during this break and that Coates told them that he did not want to go to jail where he would not last five minutes. They gave evidence that Coates also said that he wanted to do a deal and be charged with conspiracy to murder. Coates denied the substance of the police evidence. He also denied that he had initiated the break. No reference was made to these conversations when the videotaped interview resumed. The police officers made no attempt to get Coates to confirm on videotape the substance of the admissions that he had allegedly made while the videotape was turned off. Nor were any contemporaneous notes taken of the alleged off-camera admissions. Hawley and Hutchinson claimed that they made notes of the conversation on the following day that included notes of the untaped portions. They said that these notes were subsequently lost or mislaid. Kays and Byleveld gave evidence that neither took notes of the conversation they claimed to have had with Coates.

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93. Counsel for Coates submitted that the trial judge erred in admitting the admissions allegedly made by Coates during the 45 minute break in the videotaped interview of Coates. The admissions were not later confirmed on videotape when the videotaped interview was resumed. Section 570D of the Criminal Code relevantly provided that evidence of any admission by an accused person on trial for a serious offence is not admissible unless there is a "reasonable excuse" for there not being a videotaped recording of the admission. Counsel for Coates submitted that the trial judge and the Court of Criminal Appeal erred in finding that there was a "reasonable excuse" in the circumstances for the lack of a videotaped recording of the admission.

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102. Both the natural and ordinary meaning of "interview" and the purposive construction of s 570D favour interpreting that term in s 570D(4) to cover the entire time during which Coates spoke with and was questioned by the police. The term "interview" is used only in s 570D(4): the rest of the section refers to "any admission" or "the admission" or "an admission" without specifying that the admission must be made in the course of an interview, that is, without designating the occasion of the admission. The policy of the section is that no admission is admissible unless it falls within one of the three paragraphs in s 570D(2). Paragraph (b) - the reasonable excuse exception - is the relevant exception in the present case. That paragraph declares that "evidence of any admission ... shall not be admissible unless ... the prosecution proves ... that there is a reasonable excuse for there not being a recording on videotape of the admission". Reasonable excuse includes that the accused "did not consent to the interview being videotaped."

103. The natural meaning of "interview" in s 570D is the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a "serious offence". It is unlikely that the Legislature in using the term intended it to mean each separate question and answer or statement made on a particular occasion, so that each such question and answer or statement constituted an "interview". It seems absurd to think that the Legislature intended the occasion of Coates' interrogation to constitute at least four separate interviews, consisting of two videotaped interviews and two unrecorded interviews during the toilet breaks.

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105. Hence, by interpreting "interview" to cover all exchanges between Coates and the police while he was under caution, s 570D applies to the times when filming was suspended. Because Coates did not withhold consent to the entire series of exchanges being videotaped, his refusal to consent to some of the exchanges being videotaped (if he did) did not fall within the meaning of "reasonable excuse" as defined in s 570D(4)(c).

Gummow and Callinan JJ (would allow Coates’ appeal)

125. On the resumption of the interview on-camera, no attempt was made by any police officer to have Coates repeat the inculpatory statements that he had made during its suspension. In evidence, Coates denied that he had made the statements attributed to him during the suspension of the filming. Hawley accepted that he had never suggested to Coates, when the disputed off-camera admissions were being made, that "we need to get back on video" or anything to that effect. He said that he encouraged Coates to speak off-camera and that he "deliberately chose to continue this interview off-camera".

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156. What occurred in this case answers none of the explicit descriptions of reasonable excuse contained in s 570D(4)(a), (b), (c) or (d). The appellant did not refuse to consent to his interview being videotaped. We do not overlook that "reasonable excuse" is inclusively defined, and that therefore circumstances not within the explicit definition might still give rise to a reasonable excuse. In our opinion, however, what occurred falls so far short of, and is so different from, any of the defined circumstances that it could not amount to a reasonable excuse; nor could it be objectively regarded as a reasonable excuse. No attempt was made by any police officer to have Coates repeat on-camera what he was alleged to have said off-camera even though there was a reference to what he might say when the video resumed. It has been submitted however that the admission was made when it was not practicable to videotape it. We disagree.

157. The fact, if it be a fact, that Coates "was anxious to speak off-tape" cannot of itself provide a "reasonable excuse". Anxiety to speak off-tape, especially during a suspension of a lengthy interview on tape, in the absence of unwillingness to consent to the videotaping of the "interview", could not of itself, as here, possibly constitute a reasonable excuse. Because of the absence of any evidence of an unwillingness to consent, it is unnecessary to decide whether s 570D(4)(c) should be read as meaning "... consent to the interview [or any part of it] ... ." Furthermore, there is a real question whether anxiety on the part of Coates to speak off-camera, was, in the circumstances, an inference that was available to the Court of Criminal Appeal, particularly when no invitation was given to Coates, either off-camera or on-camera, to repeat the inculpatory material which the Crown claims he had earlier volunteered. That Coates was anxious to speak off-camera appears to be no more than an assertion by the police officers conducting the interview.

Kirby J (would allow Coats’ appeal)

218. Absence of "reasonable excuse": For the reasons given by Gummow and Callinan JJ, the explanations advanced on the part of the police in their evidence at trial did not provide a "reasonable excuse" within the Code for their failure to record the off-camera conversations with Mr Coates. Despite the opinion of the trial judge that Mr Coates asked for a toilet break when the second interruption to the recorded interview occurred, the circumstances of that break are very troubling. So far as the recorded transcript is concerned, it was the police, not Mr Coates, who initiated the break. The police interviewer twice asked Mr Coates if he wanted to break for the toilet. The fact that the question had to be repeated suggests that Mr Coates did not at first respond to the suggestion because he was not expecting (still less indicating) the proposal of a break. His was an odd response if it was Mr Coates who was seeking the break. The use by Mr Coates of the answer to the question "sure", may tend to indicate that he was willing to go along with a police suggestion. In my experience, "sure" is an expression usually used in conversational English as an unenthusiastic word of concurrence, like "alright" - rather than an affirmation by someone who positively desires and initiates the course proposed. However, I acknowledge that much would turn upon the facial expression, body language and tone of the person saying the word.

Hayne and Heydon JJ (would dismiss Coates’ appeal)     

308. What videotaping did Coates consent to? The primary avenue of admissibility for the officers' evidence is s570D(4)(c), which concentrates attention on whether Coates "did not consent to the interview being videotaped". If, at 5.06pm, Coates had been prepared to go on being subjected to videotaped questioning, and if the break then was triggered by the police as a means of adopting more aggressive tactics without being videotaped in doing so, it would not be possible to conclude that s 570D(4)(c) had been satisfied, and very difficult to conclude that there was, in any sense, a "reasonable excuse" for the lack of videotaping.

…

313. The crucial issue is whether Coates withdrew his consent to videotaping at 5.06pm or whether the police officers of their own volition decided to cease videotaping, and, to use the trial judge's language, "effectively manufactured" the break.

336. The application of s 570D: outline. In the present case, there was a "reasonable excuse" for there not being a recording on videotape of the admissions made in the period 5.06-5.51pm on one of three bases. First, s 570D(4)(c) was satisfied in that the discussion in that period comprised a separate interview, and Coates did not consent to that interview being videotaped. Secondly, and in the alternative, s 570D(4)(c) was nevertheless satisfied on the basis that there was a single interview from 3.24-6.19pm, and while Coates consented to parts of that interview being videotaped, he did not consent to it - that is, the whole of it - being videotaped. Thirdly, if s 570D(4)(c) did not apply, the circumstances fall within the inclusive aspect of the definition of "reasonable excuse" in s 570D(4).

James J

1. Simon Taouk appealed against his conviction, after a trial in the Supreme Court before Barr J and a jury, on two charges of murder, that on 29 September 2002 he murdered Tony Taouk and that on the same date he murdered Salam Taouk. Salam Taouk was the appellant’s wife. Tony Taouk was the appellant’s brother-in-law, being a brother of Salam Taouk.

…

36. As will be apparent from my brief summaries of the evidence of the appellant’s children, none of the children witnessed the shooting of either Salam Taouk or Tony Taouk. In the absence of any direct evidence from a witness that it was the appellant who had shot either Salam Taouk or Tony Taouk, the Crown’s case on both charges was, to a large extent, a circumstantial one, although the Crown also relied on admissions which the Crown said the appellant had made to Constable Munro and in the recorded interview. I will consider the evidence relied on by the Crown in dealing with the ground of appeal against conviction that the verdicts of guilty were unreasonable, having regard to the evidence.

…

39. I have already mentioned that a police officer Constable Munro gave evidence at the trial of a conversation he said he had had with the appellant in the early morning of 29 September 2002. Constable Munro gave evidence that at 3.15 in the morning, while Constable Munro was on duty as a station officer at Burwood Police Station, a male person, who he subsequently came to know was the appellant, had come into the police station. Constable Munro’s evidence continued:-

“I approached the counter and the defendant (that is, the accused) said to me ‘I want to report a disturbance at my house’ I said: ‘what’s happened?’ He said: ‘I have just shot someone at my house. I had an argument with my brother and he had a gun. I took it off him and I fired a few shots’. I said: ‘Is anyone hurt?’ He said: ‘I don’t know’. I said: ‘What’s the address’? He said: ‘61 Redmyre Road Strathfield.’ I said: ‘Just a moment’”.

Constable Munro gave further evidence that he then spoke to a more senior officer, that he saw other police officers speak with the appellant in a conversation which he did not hear and that he saw the appellant being escorted towards the custody area of the police station.

…

41. About ten minutes after the first conversation occurred Constable Munro made entries in his police note book about the conversation. These entries made in Constable Munro’s note book were not shown to the appellant.

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43. As I have already mentioned earlier in this judgement, the appellant was interviewed by police in an electronically recorded interview, which commenced at 11.58am on 29 September 2002. The interview was conducted through an Arabic interpreter. A recording of the interview was admitted into evidence at the trial.

44. In the interview the appellant agreed that he had attended Burwood Police Station that morning. He agreed that he had said “I want to report a disturbance at my house” and that a police officer had asked “what’s happened?” However, the appellant denied that he had said “I have just shot someone at my house”. He asserted that he had said, “Tony shot somebody in my house and I tried to stop him”. The appellant denied that he had used the word “brother” and asserted that he had used the word “brother-in-law”. The appellant asserted:-

“I said I mentioned my brother-in-law, my brother-in-law, I said he came last night to my place and he was carrying a, carrying a gun and he was shooting at the peoples, and he tried, and he tried to shoot me and I tried to help him and then he kept shooting at a lot of others who got shot”.

In the interview the appellant said that he had told the police officer (Constable Munro) that he had taken the gun from his brother-in-law.

…

52. Accordingly, Barr J ruled that evidence of the first conversation with Constable Munro was admissible but that evidence of all of the other conversations was rendered inadmissible by s 281.

53. On this appeal counsel for the appellant submitted that the trial judge had erred in admitting evidence by Constable Munro of the first conversation Constable Munro said he had had with the appellant. It was submitted that, as soon as the appellant said to Constable Munro “I want to report a disturbance at my house” the appellant became a person who could reasonably have been suspected by Constable Munro of having committed an offence.

…

70. If, as I have held, the trial judge properly applied the terms of s 281, the trial judge should, in my opinion, be regarded as having made a finding, albeit a negative finding, that it was not the case that, at the time when the first conversation occurred, the appellant was a person who either was or could reasonably have been suspected by Constable Munro of having committed an offence. Error by the trial judge in making such a finding would be established, only if there was no evidence to support such a finding (R v O’Donoghue (1988) 34 A Crim R 397, R v Khouzame [2000] NSWCCA 505). In my opinion, there was evidence to support such a finding and the first ground of appeal in the present appeal could be disposed of, simply on the basis that it has not been established that the trial judge was in error in making such a finding. I will, however, proceed to consider whether, if the matter was at large in this Court, it should be held that the admissions made in the first conversation with Constable Munro were made at a time when the appellant could reasonably have been suspected by Constable Munro of having committed an offence.

…

73. 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.

74. In my opinion, the attendance by the appellant at a police station, even in the early hours of the morning, and the saying by the appellant to a police officer of words to the effect that the appellant wished to report some untoward occurrence which had happened at his house did not provide any grounds on which the police officer could reasonably have suspected that the person had committed an offence. The police officer could reasonably have formed the view that the appellant was seeking to report an occurrence at his house of which he had been the victim or which he had witnessed but not an occurrence involving the commission by the appellant himself of some offence. It is common for members of the public to report to police crimes of which they have been the victims. It is much less common for members of the public to report to police crimes which they have themselves committed.

75. After the appellant had told Constable Munro that he wished to report a disturbance, Constable Munro asked the appellant a completely non-leading question “what’s happened?” and the appellant in a few, very brief sentences, uninterrupted by any further question from Constable Munro, told Constable Munro what had happened. Like the trial judge and like counsel for the appellant at the trial, I consider that the appellant could not reasonably have been suspected by Constable Munro of having committed an offence, until after the appellant had completed giving his brief account of what had happened at his house.

Hislop J

138. I agree with James J.

Hall J

158. The “trigger” for the application of the protections afforded by s.281 is the moment when a police officer to whom a confession or admission has been made, suspected or could reasonably have suspected the appellant to have committed an offence. Accordingly the legislation excludes from protection confessional statements made before that level of suspicion is reached…

…

165. I have concluded that it is difficult to see how the appellant’s statement “I want to report a disturbance at my house” could in itself, along with surrounding circumstances (which would include the attendance at the police station at the early hours of the morning) reasonably make the appellant a suspect within the meaning of s.281(1)(a). As to the alternative submission made, namely, that the trial judge should have exercised the discretion conferred by s.90 of the Evidence Act to refuse to admit the evidence of the conversation with Constable Munro or alternatively by virtue of the discretion under s.138 of the Evidence Act, I, with respect, agree with the reasons expressed by James, J. in his judgment which has been circulated in draft. I accordingly would reject these alternative bases in relation to Ground 1.

Howie J

1. The accused has been charged with the murder of Kara Kenny, his former partner, on 19 October 2007. It is not in contest that the accused stabbed her causing her death. I understand that the issues to be determined by the jury are whether, at the time of the stabbing, he had the intent necessary for murder and, if he had, whether the defence of substantial impairment can be sustained.

2. The accused objects to evidence of admissions allegedly made by him during, what could be called, a standoff between him and the police that occurred shortly after he had stabbed the deceased. It is submitted on behalf of the accused that the admissions are rendered inadmissible under s 281 of the Criminal Procedure Act 1986. It is further submitted that the admissions were obtained in breach of Australian law because of the absence of any caution given to the accused before the admissions were made. Reliance is also placed upon the discretion contained in s 90 of the Evidence Act. Although initially it was indicated that the accused also intended to rely upon s 85 that intention was withdrawn during the hearing.

…

12. The first police officers on the scene were Constables McCarthy and Knight. They were in a patrol car at about 12.07am when they received two messages. The first was that a male had smashed in a door at nominated premises in Wyong. While on the way to the location, they received another message that a female had been stabbed. When they arrived at the scene, they saw the accused waving two knives, one in each hand. This was at about 12.08am.

13. Both police officers exited their vehicle and drew their pistols pointing them toward the accused. Both called on him to throw down the knives. The accused said, “Shoot me. Come on shoot me. I’ve already stabbed her. Its not gonna matter. Just shoot me”. Similar exchanges continued for a short time, the police calling upon the accused to drop the knives, and he stating that he had killed the deceased and he wanted to be shot.

…

16. He then returned to the front of the premises where he had stabbed the deceased. The police parked the vehicle, got out and again drew their weapons and pointed them at the accused. Again McCarthy called upon him to put down the weapons. The accused said, “What’s the point? I stabbed her there. Then over there. Just shoot me. It’s already done”.

17. A conversation ensued between the two during which they exchanged first names. McCarthy said, “Put down the knives Jason, I want to help you.” The accused said, “No you don’t. You’re lying. You’ve got on the blue uniform and you lie. You’re here because I stabbed her, you’r here because I stabbed her.” McCarthy said, “Yes, you are right that is why we were called here. But now I want to talk with you and find out what is happening with you.” The accused said, “She deserved it, I am sick of this shit. Six years”.

…

26. Over a period of almost two hours McCarthy and the accused talked much in the manner I have indicated above. At various times the accused still talked of being killed by police but the conversation covered various areas including injuries suffered by the accused at work and the welfare of the children. Throughout this period the accused was armed with the two knives and officers had weapons trained upon him.

27. Eventually these talks broke down when the accused said, “I don’t want to talk to you any more Shannen. You lied. I want to talk to your Sergeant.” Senior Sgt Lawson then commenced to speak with the accused and the conversation continued in much the same vein as it had between the accused and McCarthy. The accused still at times called upon the police to shoot him. Eventually professional negotiators took over and ultimately the accused placed the weapons into the ground and was arrested. This was at 2.57am.

…

37. There is no doubt that statements made by the accused during the course of conversations with officers McCarthy and Lawson are admissions for the purpose of the section. The prosecution wishes to lead them in evidence as relevant to the accused’s intention at the time of the stabbing and on the issue of substantial impairment.

38. There is also no doubt that the accused was at the time suspected or could reasonably be suspected of having committed an offence, being both the stabbing of the deceased and an offence in relation to his threats to police.

…

40. The decisive issue for the purpose of s 281 is whether the questioning, such as it was, was questioning “in connection with the investigation of the commission or possible commission of an offence”. Mr Siva for the accused has argued strenuously that it was, first because it was obvious that officer McCarthy was there as a police officer to investigate the two reports that she had received by police radio, the latter being the stabbing of a female. Secondly it is noted that she asked the accused on a number of occasions during the conversation, which Mr Siva referred to as “an interview”, questions about what he had done and why he had wanted the deceased dead. It was submitted that these questions were asked in connection with the investigation for which the officers had arrived at the scene.

…

77. Although, as James J noted, the words “in connection with an investigation” are of wide import, in effect they confine or focus the scope of the questioning between a police officer and a suspect. Without these words “official questioning” would arise whenever a police officer is questioning a person who is or, ought reasonably to have been, suspected of committing an offence whatever be the content or circumstances of the questioning. As I pointed out in Sharp, that is not what Parliament sought to achieve by the provisions. There may be formal or informal police procedures before or after arrest that do not fall within the ambit of the section because they are not in connection with an investigation. As Gleeson CJ stated in Carr:

The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object?

In my opinion Parliament did not go so far or intend to go so far as to cover the factual situation that arose here.

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79. The conversation between McCarthy and the accused could not be further from an interrogation of a suspect by a police officer, even an informal one at the scene of a crime. First the accused was armed and committing a serious offence at the time by his threatening conduct to the two officers. Secondly the accused was at time attempting to have the police shoot him. Thirdly both officers were armed with weapons trained on the accused. Fourthly McCarthy was seriously considering whether she would need to shoot the accused and at one stage had her finger squeezing the trigger. Fifthly McCarthy was not seeking to find out information from the accused but to build some rapport with him so that she could gain his trust with the ultimate purpose of having him drop his weapons. This was negotiation not interrogation. I accept that the subjective purpose of the officer engaging with a suspect might not be decisive as to whether the officer is involved in “official questioning” but I believe it is relevant. Sixthly this was a “police operation” in response to a “critical situation” as Chief Inspector Winmill described it. The concern was to keep the accused talking in order to secure the safety of himself, police and others.

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84. It is clear beyond question in my mind that there was a reasonable excuse for the failure to record the conversations electronically by any other means. First there was no means that McCarthy or her partner could have attempted to record the conversations. They were taken up with pointing their weapons toward the accused to protect themselves and others from him. As other police arrived they were stationed, or stationed themselves, around the area in which the accused was, also with their weapons drawn. They were intent on protecting themselves and others.

McClellan CJ at CL

1. I agree with Howie AJ.

Simpson J

2. I agree with Howie AJ.

Howie AJ

3. This is an appeal against conviction following a trial by jury in the District Court of an indictment containing eight counts. The appellant was represented by counsel at trial but was unrepresented on the hearing of the appeal. He has conducted the appeal by way of written submissions to which he did not wish to add any oral argument at the hearing in this Court. The submissions on which the appellant relies are set out in a handwritten document of 25 pages. The submissions are clear, rational and precise and the appellant appears to be intelligent. The Crown filed lengthy written submissions in reply and did not wish to add to those submissions at the hearing of the appeal.

…

10. It was the Crown case that the appellant was the person who committed each of the offences in the indictment even though he was never identified as the perpetrator in any one of them, apart from the 8th and 9th counts. Those last two allegations arose from the circumstances of his arrest. The Crown sought to prove his identity in each of the offences in counts 1 to 7 based upon the tendency, coincidence and circumstantial evidence. Although there was evidence of disputed admissions, the Crown did not rely upon them except as part of its circumstantial case to prove the accused's participation in the robberies and the break and enter offences.

The charges concerned a number of offences committed chiefly against fast food outlets in Marulan, Yass, Goulburn and the surrounding area including in the ACT. The Crown contended that there were similarities both in the physical appearance of the robber and his modus operandi that indicated it was the same person committing all the offences. The Crown relied upon the appellant's admission to committing an armed robbery in Mittagong as identifying him in that robbery and as the basis for asking the jury to infer that he was the perpetrator of the offences on counts 1 to 7 on the indictment. It also relied upon the circumstances in which the appellant came to be arrested to further identify him as the person responsible for the other offences.

…

17. Later that day the appellant entered into an ERISP in which he admitted having committed an armed robbery at McDonald's at Mittagong on 16 April 2007. He later pleaded guilty to this offence before another court. This offence was not included on the indictment but the Crown relied upon the appellant's admission to having committed that offence as part of its case to prove the offences on the indictment. The Crown asserted that there were similarities between the commission of that offence and some that were charged on the indictment.

…

131. On 23 April 2007, the Sergeant was rostered as custody manager at Goulburn Police Station. At about 7.20am she received the appellant into custody and read him Part 9 from the Law Enforcement (Powers and Responsibilities) Act (The LEPR Act). She spoke to the appellant again at 9.19am and informed him that she was waiting for his solicitor. She continued to have involvement with him including facilitating a meeting between the appellant and a Legal Aid solicitor, obtaining a buccal swab and providing him with a meal.

132. After the ERISP between Detective Selmes and the appellant concluded, the Sergeant performed the duty of asking the appellant the formal questions about whether he had any complaints about his treatment. It will be recalled that in this interview the appellant admitted having committed the Mittagong robbery but had refused to say anything about the other alleged offences. It will also be recalled that during the search of his premises the appellant appeared to admit to an offence at Belconnen when shown the cash bags from those premises.

133. After the ERISP interview Sergeant Gooch secured the appellant in the dock at 2.34pm and said to him, "Do you understand that you are going to be charged with several armed robbery offences?" The appellant responded, "Yes, I don't know about the others but I admitted to three. The two here and one in Canberra". The Sergeant said, "As these are serious offences that involved violence that happened over a period of time I will be refusing bail. That means that I will try to get you before a magistrate this afternoon. What happens from there is the decision of the magistrate, do you understand that?" The appellant said, "Yes, I don't know why I did it".

…

137. The question for the Judge to determine was whether the questions asked by Sergeant Gooch were "official questioning" for the purposes of the section: that is were her questions " in connection with the investigation of the commission or possible commission of an offence"? This is a question of fact and, provided it was open to his Honour to have found as he did, that they did not fall within the scope of the section, this Court would not interfere in that finding; see R v Taouk [2005] NSWCCA 155; 154 A Crim R 69.

…

139. I am prepared to accept for the present ground of appeal that the Sergeant was "questioning" the appellant but I have grave doubts that she was. "Questioning" seems to me to be more than simply asking a person whether he understands information that has been conveyed to him. In reality the Sergeant was merely seeking to ensure that the appellant understood what was going to happen: that is that he was going to be charged "with several armed robbery offences". She was not seeking information but supplying him with information. What followed next was again providing the appellant with information: that she was going to refuse him bail and take him before a magistrate. Again the only question she asked was to ensure that he understood what he was being told. I do not believe that this is "questioning" in common parlance. It certainly does not appear to me to be "questioning" in terms of an investigation of an offence. I am prepared to accept that the section is protective legislation, as it was described in Horton at 23, and should not be read down so as to diminish its obvious beneficial effect on the rights of persons in custody. But nor should it be given an effect that was never intended by the legislature.

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148. It was clear that the investigation was over at least so far as the appellant was concerned. The Sergeant informed him that he was going to be charged and that she was going to refuse bail. The conversation that she had with the appellant in that regard cannot in my view be considered to be "questioning... in connection with an investigation of the commission.... of an offence".

150. In my opinion, not only was it open for the Judge to find that the conversation between Sergeant Gooch and the appellant fell outside the scope of the section, that was the only finding he could have reasonably made.

Adamson J

1. The trial of the accused for the murder of John Marceta (the deceased) is due to commence on 16 October 2012. The Crown alleges that, on 2 August 2011, the accused stabbed the deceased with an intention to kill him or cause him grievous bodily harm and that the deceased died as a result of the injuries. The principal issue in the case is whether the Crown can establish beyond reasonable doubt that the accused did not kill the deceased in self-defence or in defence of others, relevantly, his two nieces or his sister, Sharon Le, who were nearby at the time of the stabbing.

2. There are relevantly two evidentiary matters which were presented for pre-trial determination: the admissibility of an initial recorded interview (the Initial Interview) and the admissibility of the Electronically Recorded Interview of a Suspected Person (ERISP). Both interviews took place on 2 August 2011, being the date on which the accused stabbed the deceased.

…

4. The accused objected to the ERISP on the ground that it was obtained in derogation of his privilege against self-incrimination in that although he told people that he did not want to answer questions, the police continued to question him.

…

7. A few minutes later, Senior Constable Daye arrived and arrested the accused. The following interchange then occurred:

"Q1. My name is Detective Senior Constable Daye. I'm from Redfern Police. Do you understand that?

A. Yes.

Q2 I want you to know you're under arrest.

A Yes.

Q3 You're not obliged to say or do anything. Anything you say or do will be recorded and can later be used in evidence in court. Now you understand I'm going to ask you to comply with some conditions?

              A Yes.

Q4 If you fail to comply with some of those conditions you may be committing an offence. I'll let you know what they are. (POLICE RADIO IN BACKGROUND) Everything that we say or do will be recorded on this device. Do you understand that?

A (NO AUDIBLE REPLY)

Q5 It can later be used as evidence in court. What is your name?

A I'm Craig Charles Pitts.

Q6 Craig, how old are you?

A I'm 28.

Q7 What is your date of birth?

A (POLICE RADIO IN BACKGROUND)

Q8 OK. What happened here today?

A I was sittin' with my back to him (POLICE RADIO IN BACKGROUND)... knocking on the door... and they kicked the door in up to my (POLICE RADIO IN BACKGROUND) nieces... I had to defend my family.

…

…

14. I do not consider that the caution was given in accordance with s 139(1). The reference to compliance with conditions followed immediately thereafter, which tended to give the accused the impression that there was some obligation on him to answer questions put to him and that if he did not answer he may be guilty of an offence. In these circumstances, it was misleading and confusing for the police officer to refer to conditions with which the accused was obliged to comply, when there were no such conditions. The suggestion that failure to comply with conditions is accompanied by a criminal sanction is the antithesis of a caution given in accordance with s 139(1).

…

16. The accused submitted that I ought exercise the discretion conferred by s 138 of the Evidence Act to reject the Initial Interview. Section 138 relevantly provides…

…

28. The transcript of the ERISP records several occasions on which the accused indicated that he did not want to answer questions. When the police told the accused that they wanted to ask him questions about the stabbing of the deceased in Redfern earlier that day and asked if he understood, the accused said:

"Yeah. My lawyer's instructed me not to say nothing."

29. Despite this statement, the police continued. A caution was given to which the accused answered:

"Yeah. My lawyer said not to do anything."

30. When asked whether he wanted to tell the police about the incident, the accused answered in the negative and said, further, "no comment".

31. The interrogating police officer then said:

"All right. Can I just ask you one question, can I just get your mobile phone number?"

32. The accused complied and further questions were asked, notwithstanding the intimation that only one would be. Questions about the mobile phone service then ran straight into questions about relevant events, on part of which the Crown relies as admissions

…

38. I do not consider the questioning of the accused to be fair. He declined to answer questions at the outset but then was encouraged to give his mobile phone number, having been told that he would be asked one question. On several occasions he declined to answer questions, said he did not want to answer questions or reiterated his advice, which was not to answer questions, but the police persisted in asking him questions.

39. Further, the expression of sympathy for his plight was offered as a way of encouraging him to answer further questions about what had occurred. I have also taken into account that the interview took place on the same day as the incident, in the course of which the accused's head and hand had been injured. These injuries were obvious to police. There was still blood on the accused's hand and a mark on his forehead. The accused's capacity to withstand the various techniques that were adopted by the police to get him to answer questions was evidently diminished.

40. Although he was not threatened and the statements made to him do not amount to an inducement, I have come to the conclusion that, in all the circumstances, the accused's answers were not given voluntarily and the questioning of him was not fair.

Rothman J

1. Before the Court is an application on the voir dire relating to the admissibility of the evidence adduced in the course of an ERISP, being an electronically recorded interview of a suspected person, of the accused Barmah Rossi-Murray that was recorded on the 6 July 2016. The accused, Mr Rossi-Murray, is of aboriginal descent and as a consequence, pursuant to the terms of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (hereinafter “the Act”) is a protected person within the meaning of that Act.

…

8. The evidence in that respect was given by Ms Stefana Morisio when the voir dire with which we are now dealing was first raised. Ms Morisio seems to have been unfamiliar with the process and took the view that she ought not interrupt the questioning, in relation to the matters with which she was concerned and that were being asked.

9. In the course of the evidence of Ms Morisio, she described the accused as “timid”. That description is not an unusual one in relation to the demeanour of Aboriginal persons when questioned by authorities. Steps are often taken in relation to overcome such cultural issues in court proceedings. Indeed, some of the aspects of Pt 9 of the Act, in relation to protected persons, are based upon the proposition that many persons of Aboriginal descent, for cultural reasons, will not assert to the contrary to persons in authority.

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19. I turn then to the terms of the ERISP. Apart from the formal matters about inducements and promises and the like, the substance of the questions asked excited an answer or answers that are in the form of “I can’t answer that”; “I don’t know”; and “I don’t want to answer.” There are a number of examples. It is unnecessary to recite all of them but the terms of Exhibit E on the voir dire are replete with such answers.

…

30. There are many answers that are in similar form. There are many answers in which the witness says “I can’t remember” and then says “I wish not to answer it” or does not recite the latter aspect, that is, he simply says “I can’t remember”. But the demeanour of the witness, the series of questions both in Exhibit A on the voir dire, which is the unedited version of the transcript, and in Exhibit E, being both the recording and the transcript of the edited version, convinces me that when the witness is saying “I can’t remember that” he is, in effect, avoiding the answer to a question that he has chosen not to answer in accordance with his legal advice.

31. That then leaves the issue of whether that is an unfair prejudice or unfair to the accused if it be an admission. It is not absolutely clear how the Crown seeks to utilise a question and answer to the effect that “Did you murder the deceased? I can’t answer that question because of my legal advice”.

32. On its face, it seems to me to be inviting the jury either to ignore the right of the accused to silence and to refuse to answer questions, or to treat the question (as distinct from the answer) as evidence before them. There is no doubt I will give the jury the usual direction, if not a more complete one, relating to the right of an accused not to answer questions, but it strikes me that that question and answer has no, or very little, probative value and therefore would require very little unfair prejudice to overcome it.

33. There are some questions and answers which are positive. Those questions and answers, it seems to me, are admissible, whether or not they are true, and that is a matter for the Crown to deal with. It does seem to me that the persistence of the detectives overcame some of the reluctance to answer questions, but I reject questions and answers either to the effect of, ‘I will not answer that’ or ‘I will not answer that on legal advice’ or, ‘I can’t remember that’, and including, ‘I don’t know’ and I so rule.

34. I make that ruling because it is clear to me that the witness in answers of that kind is refusing to answer on legal advice and to admit them as, for example, lies, would be most unfair. I exercise my discretion under s 90 of the Act having particular regard to the cultural issue facing persons of Aboriginal descent, corroborated, in this case, by the demeanour of the accused during the interview.