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Supreme Court 6 July 2000

AH-SEE v. HEILPERN & ANOR

[2000] NSWSC 627

Also reported as [2000] 115 A Crim R 1
Theft & property
EVIDENCE CRIMINAL PROCEEDINGS ADMISSION IN OFFICIAL QUESTIONING UP." AND ANSWERED "NO" COGNATE LEGISLATION HELD

Citation: AH-SEE v. HEILPERN & ANOR [2000] NSWSC 627
Court: Supreme Court of New South Wales (Common Law Division)
Date: 6 July 2000
Judge(s): Bryson J

Background

The plaintiff was a 17-year-old charged with armed robbery at a Commonwealth Bank branch. Police arrested him and, during an unrecorded interview, asked whether he wished to participate in a line-up. He declined. Police then conducted a picture identification process instead, showing photographs to two bank employees who identified the plaintiff as the offender.

At trial in the Children's Court, the Magistrate admitted the picture identification evidence after finding that the plaintiff had refused to take part in an identification parade. That finding was based on the police officer's account of the brief exchange about the line-up. The plaintiff challenged the admission of both the picture identification evidence and the underlying evidence of his refusal.

The plaintiff was found guilty, sentenced to a control order, and brought this appeal to the Supreme Court. The central question was whether the Magistrate was entitled to rely on the unrecorded exchange when ruling on the admissibility of the picture identification evidence.

  • Whether the plaintiff's answer "No" to the question about participating in a line-up constituted an "admission" within the meaning of section 424A of the Crimes Act 1900 (now section 108 of the Criminal Procedure Act 1986), which requires official questioning of suspects to be electronically recorded.
  • If the exchange was an admission under section 424A, whether the absence of an electronic recording rendered that evidence inadmissible and therefore unavailable to support the admission of picture identification evidence.
  • Whether the Magistrate was correct to rely on the unrecorded exchange when ruling on the objection to the picture identification evidence under section 115(5) of the Evidence Act 1995.

Decision

Section 115(5) of the Evidence Act 1995 renders picture identification evidence inadmissible where the accused was in police custody when the photographs were shown, unless one of three exceptions applies. The relevant exception here was that the defendant had refused to take part in an identification parade. The admissibility of the picture identification evidence therefore turned entirely on whether the plaintiff's refusal could be established.

The plaintiff argued that the question-and-answer exchange was itself an "admission" requiring electronic recording under section 424A of the Crimes Act. Bryson J analysed the definition of "admission" by reference to the Evidence Act 1995 dictionary, which defines an admission as a previous representation that is adverse to the maker's interests in the outcome of proceedings. His Honour noted that section 424A was designed to govern the reception of admissions as evidence of the truth of what was said, and to protect accused persons from reliance on unrecorded self-incriminating statements.

Bryson J held that the plaintiff's refusal was not an "admission" within the meaning of section 424A. The exchange was direct proof of an event, namely the act of refusing, not proof of a statement tendered for the truth of its contents. The provision was intended to apply where the prosecution seeks to rely on what an accused said as evidence that it was true. Here, the prosecution relied on the refusal as a fact establishing a precondition to the admissibility of other evidence, not as a representation whose truth was in issue.

His Honour also addressed a separate submission: that the refusal could not be "adverse to the plaintiff's interests" unless it was known whether he would have been identified in a parade. Bryson J rejected this, finding that the relevant time for assessing adversity is when the evidence is tendered, and at that point the refusal clearly supported the reception of picture identification evidence against the plaintiff.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • Bryson J held that a suspect's unrecorded refusal to participate in an identification parade is not an "admission" within section 424A of the Crimes Act 1900 (now section 108 of the Criminal Procedure Act 1986). The electronic recording requirement in that provision applies to statements tendered for the truth of their content, not to direct proof of an event such as an act of refusal.

  • Under section 115(5) of the Evidence Act 1995, picture identification evidence is inadmissible where the accused was in custody at the time, unless an exception applies. One recognised exception is a refusal by the accused to take part in an identification parade, and that refusal may be proved through direct evidence without engaging the admissions provisions.

  • The distinction between evidence of an "admission" and evidence of a bare act or event carries real consequences: not every statement made by an accused during official questioning is an admission requiring compliance with the electronic recording regime.

  • In assessing whether a representation is "adverse to the person's interests in the outcome of the proceedings," the relevant moment is when the evidence is tendered at trial, not when the statement was originally made.

  • In dismissing the appeal, the Supreme Court confirmed that a Magistrate ruling on an admissibility objection may have regard to evidence admitted for the limited purpose of resolving that objection, even where that evidence has been rejected for use in the proceedings generally.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW): ss 59, 72, 81, 82, 85, 115, 138, Dictionary
- Crimes Act 1900 (NSW): s 97, s 424A
- Criminal Procedure Act 1986 (NSW): s 108
- Children (Criminal Proceedings) Act 1987 (NSW): s 33(1)(g)
- Justices Act 1902 (NSW): s 109
- Crimes Legislation Amendment (Sentencing) Act 1999
- Evidence (Consequential and Other Provisions) Act 1995
- Supreme Court Act 1970 (NSW): s 101

Cases:
- Viro v The Queen (1978) 141 CLR 88
- Repatriation Commission v Vietnam Veterans' Association [2000] NSWCA 65
- Horton (1998) 104 A Crim R 306
- Hinton (1999) 103 A Crim R 142
- Esposito (1998) 105 A Crim R 27