#8519 - Interrogation Taping Provisions - Litigation - Criminal Procedure Rules

Interrogation of Suspects: Right to Silence and Taping of Interview

H&J 254-256

SM 150-180

Whether interviews complied with the taping provisions in s 281 CPA and s 86 EA will determine whether or not evidence of admissions made during interviews are admissible.

Whether or not s 281 applies depends on 5 issues:

1. whether the accused was or could reasonably have been a suspect at the time the admission was made (s 281(1)(a)

2. whether the accused made an admission ( s 281(1))

3. whether the admission relates to an indictable offence (s 281(1)(c))

4. whether the admission was made in the course of official questioning (s 281(1)(b))

5. whether there is a reasonable excuse for not taping the admission: s 281(2)(a)-(b).

note: S does not render an admission in breach of section inadmissible where no objection is taken by accused: R v Reid

1 Whether the accused was or could reasonably have been suspected by an investigating official of having committed an offence: s 281(1)(a)

Principles of ‘reasonable suspicion’:

• It is necessary to identify the subject matter of suspicion. The basis of the suspicion referred to in s 281(1)(a) is the state of mind of an investigating official. That state of mind is more than mere surmise or possibility, and must have factual basis. It is one arrived at on the basis of material that is capable of supporting the formation of an opinion, even if only a slight opinion, that the person in question (the accused) could have committed an offence: Taouk; Gonzales

• Reasonable possibility is insufficient: Taouk

Case examples:

• In Gonzales – cops went to house, spoke to police and then spoke to appellant ( A crying/shaking/told PO that people had rushed past him when he got home, was distressed, police felt heat of vehicle, A then gave conflicting evidence to the two cops cops didn’t ask appellant to initial the record because the cop didn’t think that hat was necessary for people who weren’t suspects, thought he was a POI). Then took appellant into interview room, statement was in the form of a statement of a witness, not of cautioned suspect, ( evidence about that no one hated the family,) nothing in statement suggested that appellant was a suspect

  • Held: evidence admissible because it was just statements that were made before he was suspected or could have reasonably been suspected of committing murders.

• In Taouk – Accuse went to station and said ‘I want to report a disturbance, I’ve just shot someone, I had an argument with my brother and he had a gun, I took it off him and fired a few shots’. Was held that his attendance in the early hours of the morning, and saying that he wanted to report a disturbance, did not provide any grounds upon which PO could reasonably have suspected that he had committed an offence. Reasonable suspicion that he was a witness or a victim, common for this to happen, not common for public to report crimes which they themselves have committed.

• LMW, when cop went to accused’s home + accused admitted pushing deceased into creek, didn’t suspect A of offence –went seeking who had seen child last: LMW but after first admission, elaborations + later interviews were made when he was a suspect.

• An ‘admission’ for the purposes of s 281 Criminal Procedure Act 1996 (NSW) are the same as that referred to in the EA ; Kelly; Horton

  • Includes any form of representation whether by conduct, oral or in writing and includes inculpatory or exculpatory statements which may turn out to be harmful for the defence: R v Horton

  • Where a statement which was on its face exculpatory was being used by the Crown as an answer to a reliance by the accused upon intoxication.

  • Any statement which is adverse to its maker in the outcome of the proceedings it o be considered as an ‘admission’ under the section: R v Esposito

• Not an admission: no in a q of lineups: When an accused was asked whether he wished to participate in a line up and he answered no the answer was not an admission for purposes of the section and therefore notwithstanding a failure to comply with the section the answer was admissible on the issue of whether identification evidence should be admitted under s 115 EA : Ah-See v Heilpern

EA Dictionary: Admission means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person’s interest in the outcome of the proceeding.

Rule: Whether an admission was made in the course of official questioning - "official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.

• Note that ‘in the course of official questioning’ is much broader than being ‘in response to a question put’ under s 86 EA, as s 281 CPA seems to apply to spontaneous outbursts, entirely non-responsive to any question or uttered during a pause in the flow of the question – there is no causal connection required between the admission and the official questioning: Kelly v R

• Principles from Kelly: (1) no requirement that person be in custody (2) it is admissions in the course of questioning not as a result of questioning orwithin a reasonable period after formal questioning, (3) where a PO says, ‘lets go to the station so I can ask questions there’, and then accused volunteers a confession, event was not in the course of official questioning if a nominated time has been in the future: Kelly v R

Case example:

• No: Statement made by suspect 20 mins after conclusion of formal interview where no question had been asked by police officer to elicit statement. not within course of official questioning: Kelly v R

  • Here it was held that when the police said ‘we’ll conclude the interview’ that was the conclusion.

• Siege situation: Statements made by the offender in siege situation were not in course of ‘official questioning’: R v Naa

• No: after arrest and caution: in Julin accused was questioned, and then arrested and cautioned, and then driven half a km to scene of crime during which time no conversation took place between him and PO – so the official questioning concluded prior to car trip when arrested and cautioned: Julin discussed in Kelly

Note that Kelly has not been explicitly overruled by Nicholls , and the legislation was different in those cases. However a purposive approach to the legislation was preferred in Nicholls that coincides with the minority approach in Kelly – and thus if Kelly was appealed there could be a different result. Thus it is worth considering whether, if the issue was appealed and the minority approach prevailed, whether upon the approach of the minority would mean that the evidence in this fact scenario would be excluded/admitted.

Minority position (to mention where situation is comparable to Kelly)

• Need to keep in mind reason for the statute (= purposive) Would be undermined if just stated and finished when the officer said it did [104]: McHugh and Kirby JJ in Kelly

  • Only terminates when investigation of the offence while the accused is in police custody is charging or release (Kirby J Kelly)

  • It does apply to statements made after PO says ‘I want you to come to the station with me’

• Kelly confessed to police that he had killed victim but during videotaped interview although accepted he had confessed he said confession was false and offered explanations for having made it. Approx. half hour later interviewing had ceased and no further questions were to be asked said to police: 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 s well”: outcome:

• Example: Admissions made by the accused when interviewed for an offence of harbouring an escapee were not admissible on the hearing of a summary offence of goods in custody: R v Rowe

  • Words should be...