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Court of Criminal Appeal 19 January 2001

Regina v Rowe

[2001] NSWCCA 1

Also reported as 50 NSWLR 510
Public order & justice offences
CRIMES ACT 1900 ADMISSIBILITY OF EVIDENCE HEARING OF SUMMARY OFFENCE.

Citation: Regina v Rowe [2001] NSWCCA 1
Court: Court of Criminal Appeal, New South Wales
Date: 19 January 2001
Judge(s): Fitzgerald JA; Ireland J; Smart AJ

Background

The appellant was convicted at Waverley Local Court of possessing items reasonably suspected of being stolen or unlawfully obtained, a summary offence under s 527C of the Crimes Act 1900. The items in question were Queensland pensioner rail travel passes and a pension concession card found in his wallet when police arrested him on an unrelated charge of knowingly harbouring an escaped prisoner, an indictable offence.

While detained at Maroubra Police Station and awaiting the arrival of his solicitor, the appellant was questioned by a detective without a tape recording being made. The appellant had twice told police he did not wish to speak until his solicitor arrived. Tape recording equipment was available at the station but was in use for another interview at the time.

The prosecution sought to rely on the detective's account of the conversation, including statements the appellant made about the origin of the identity documents. The appellant objected that the evidence was inadmissible under s 424A of the Crimes Act 1900, which requires admissions relating to certain indictable offences to be tape recorded. The District Court admitted the evidence, and the appellant obtained a case stated to the Court of Criminal Appeal.

  • Whether the appellant's statements constituted an "admission" that "relates to an indictable offence" within the meaning of s 424A(4) of the Crimes Act 1900
  • Whether the absence of a tape recording rendered those statements inadmissible
  • Whether a "reasonable excuse" existed for the failure to tape record the conversation
  • Whether the question framed in the stated case was the appropriate question for the court to answer

Decision

The court divided, by majority, on the critical question of whether the admission made during the conversation "related to" an indictable offence for the purposes of s 424A. The majority held that the conversation did relate to an indictable offence because the questioning arose in the context of the appellant's arrest and official questioning in relation to the indictable charge of harbouring an escaped prisoner. The questions about the identity documents were asked during that same course of official questioning, and the resulting admissions therefore attracted the tape recording requirement.

Fitzgerald JA, writing the leading majority judgment, found no sufficient "reasonable excuse" for the failure to use tape recording equipment. The equipment was available, there was no urgency in the circumstances, and the only possible reason for proceeding without it was the detective's apparent desire to question the appellant before his solicitor arrived, despite the appellant's clear wishes.

Smart AJ dissented. His Honour reasoned that s 424A applies only to admissions relating to indictable offences that cannot be dealt with summarily without the accused's consent. Where the admission concerns a summary offence, the tape recording requirement does not apply. In his view, the statements in question related to the summary offence under s 527C, not to the indictable offence, and were therefore admissible on the hearing of the summary charge.

The court also noted a preliminary procedural difficulty: the question posed in the stated case asked whether the judge had erred in failing to exercise a discretion to exclude the evidence. The majority observed this framing was inapt because, if s 424A applied, the evidence was inadmissible as a matter of law and the judge had no discretion to admit it.

Orders Made

  • By majority, the question submitted in the stated case was answered: the evidence of the conversation between the appellant and the detective at Maroubra Police Station is inadmissible by reason of s 424A of the Crimes Act 1900.

Key Takeaways

  • The Court of Criminal Appeal held, by majority, that where admissions are made during official questioning carried out in relation to an indictable offence, those admissions "relate to" that indictable offence for the purposes of s 424A of the Crimes Act 1900, even if the statements also touch on a separate summary offence.
  • Under s 424A, admissions that relate to a strictly indictable offence must be tape recorded; the absence of a tape recording renders such admissions inadmissible, and no judicial discretion to admit them arises if the statutory requirement applies.
  • No "reasonable excuse" for failing to tape record was established where equipment was available at the station and the only obstacle was the detective's choice to proceed with questioning before the accused's solicitor arrived, contrary to the accused's stated wishes.
  • Smart AJ's dissenting view drew a clear line: admissions as to a summary offence, admitted on the hearing of that summary offence, are not subject to the tape recording requirement in s 424A, even if the same facts might also be relevant to an indictable charge.
  • The framing of a case stated question can itself become an issue: the majority confirmed that where evidence is inadmissible by statute, the question is one of admissibility as of right, not of discretionary exclusion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 424A, 527C
- Criminal Appeal Act 1912 (NSW), s 5B
- Evidence Act 1995 (NSW), ss 90, 139

Cases
- R v Madden (1995) 85 A Crim R 367
- R v Alexandroaia (1995) 81 A Crim R 286
- R v Schiavine [1999] NSWCCA 165
- R v Horton (NSWCCA, unreported, 2 November 1998)
- R v Reid (1999) NSWCCA 258
- McKenney & Judge v The Queen (1990-1991) 171 CLR 468
- DPP v Farr (2001) NSWSC 3