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Court of Criminal Appeal 1 July 1999

R v Schiavini

[1999] NSWCCA 165

Also reported as 108 A Crim R 161
Fraud & dishonesty
CRIMINAL LAW EVIDENCE ADMISSIONS RECORDED IN POLICE NOTEBOOK ENTRY SIGNED NO TAPE RECORDING OF ADMISSIONS WHETHER REASONABLE EXCUSE

Citation: R v Schiavini [1999] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 1 July 1999
Judge(s): Spigelman CJ, Studdert J, Adams J

Background

The appellant was convicted in the District Court before Acting Judge Ford and a jury on six counts of armed robbery and one count of attempted armed robbery, arising from a series of offences in the first half of 1997. The offences targeted commercial premises including bottle shops, a liquor store, a mixed business, and service stations. Offenders wore balaclavas or masks and carried rifles and knives.

The prosecution case rested significantly on the evidence of two co-offenders, Lehmann and Williamson, who had each pleaded guilty and given statements nominating the appellant as a participant. A critical additional piece of evidence was a set of admissions made by the appellant during a notebook interview with Det. Inspector Rees at Macquarie Fields Police Station on 10 November 1997. That interview was recorded in a police notebook and signed by the appellant, but was not electronically recorded.

The appellant appealed his conviction on the ground that those notebook admissions were wrongly admitted at trial, in breach of s 424A of the Crimes Act.

  • Whether the admissions recorded by police in a notebook during the November 1997 interview were admissible under s 424A of the Crimes Act in the absence of a tape recording.
  • Whether the prosecution had established a "reasonable excuse" for the absence of a tape recording of the original interview, or for the failure to conduct a subsequent electronically recorded interview about the making of those admissions.
  • Whether the wrongful admission of that evidence, if established, warranted quashing the conviction and ordering a new trial.

Decision

Section 424A of the Crimes Act sets strict requirements for the admissibility of admissions made by suspects during official questioning in connection with indictable offences. The primary requirement is that a tape recording of the interview be available to the court. Where that is not possible, the prosecution must establish a reasonable excuse, and must also demonstrate either that a subsequent electronically recorded interview about the admissions was conducted, or that there was a reasonable excuse for not conducting one.

The Court found that the prosecution failed to clear the bar. While there was no tape recording of the November 1997 notebook interview, the prosecution did not adequately establish a reasonable excuse for failing to conduct a later electronically recorded interview in which the appellant could have confirmed or addressed the admissions. The evidence showed that a subsequent electronically recorded interview did occur in June 1998, and the officer who conducted it had knowledge of the earlier interview and had participated in interviews concerning several of the charges. That later interview touched on some of the same subject matter covered in the notebook exchange, including questions about the Gemini sedan. The court found the evidence could not support a finding that it was impossible, at that stage, to make the type of recording contemplated by s 424A(2)(b).

Because the prosecution failed to satisfy any of the three pathways to admissibility under s 424A(2), the admissions should not have been received into evidence. The court then considered the consequences. The appellant had not given evidence, and the Crown case depended heavily on the testimony of admitted co-offenders. The improperly admitted admissions were significant to the prosecution case, and the Court of Criminal Appeal concluded that a new trial was required.

Orders Made

  • Appeal allowed.
  • Conviction quashed.
  • New trial ordered.

Key Takeaways

  • Section 424A of the Crimes Act requires more than a signed notebook entry for admissions to be admissible: a tape recording of the original interview is the primary requirement, and the failure to satisfy any of the three available alternatives renders the evidence inadmissible.
  • Where a tape recording of the original interview is unavailable, the prosecution must establish not only a reasonable excuse for that absence, but also a reasonable excuse for failing to conduct a subsequent electronically recorded interview in which the suspect is asked about the admissions.
  • The Court of Criminal Appeal confirmed that subsequent investigative steps matter: where police later had the opportunity to conduct an electronically recorded interview covering the same ground, and that opportunity was not taken, the prosecution could not readily establish a reasonable excuse under s 424A(2)(b) or (c).
  • Improperly admitted admissions will not automatically result in a verdict being set aside, but where those admissions are significant to the Crown case and the remaining evidence is substantially the testimony of co-offenders, the error is likely to be material enough to warrant a new trial.
  • A conviction quashed on evidentiary grounds does not necessarily end the prosecution: the Court of Criminal Appeal may order a new trial rather than acquittal where the evidence, if properly admitted, could support a conviction.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 424A
- Evidence Act 1995 (NSW), s 86

Cases:
- R v Horton (unreported, NSWCCA, 2 November 1998)