Citation: R v Crowther-Wilkinson; R v Cowie [2003] NSWSC 44
Court: Supreme Court of New South Wales, Common Law Division
Date: 13 February 2003
Judge(s): Hidden J
Background
Two accused, a security company employee and one of the company's proprietors, were jointly charged with the murder of the other proprietor on the night of 6 June 2000. The employee (Cowie) attended a police station on 4 August 2000 and gave a written statement to two detectives. That statement was not electronically recorded.
In his statement, Cowie gave an account of the evening's events, ultimately saying he had been dropped at a suburban railway station and had then gone home and used his computer. The Crown sought to tender this statement, relying on the computer-use assertion as an admission, because expert evidence could show the computer was not used that night, suggesting Cowie had lied about his whereabouts.
Cowie's counsel objected to the tender of the statement on the ground that s 108 of the Criminal Procedure Act 1986 required an electronically recorded interview when an accused was, or could reasonably have been, suspected of an offence at the time the admission was made. No such recording existed and no reasonable excuse for the omission was offered.
Legal Issues
- Whether Cowie was, or could reasonably have been, suspected of committing an offence at the time the alleged admission was made, thereby triggering s 108 of the Criminal Procedure Act 1986
- When, precisely, the "critical time" for assessing suspicion falls under s 108
- Whether the absence of an electronic recording rendered the admission inadmissible, and whether any residual judicial discretion existed to admit it despite non-compliance
Decision
Hidden J found that s 108 of the Criminal Procedure Act was engaged. One of the investigating detectives (Inspector Berryman) gave evidence that he noticed an inconsistency between Cowie's account and an earlier statement by the co-accused before Cowie's statement was completed. That inconsistency "triggered" a suspicion in Berryman's mind, even if it was not "fully formed" until after Cowie had departed and the detectives had reviewed the earlier statement.
His Honour applied the principle from R v Rowe that the critical time for assessing suspicion is when the admission is made. Hidden J held that confining this to the precise moment of the computer-use assertion would be absurd and contrary to the legislation's purpose. It was sufficient that Inspector Berryman had formed a suspicion before the statement was concluded, and Berryman was an "investigating official" for the purposes of the section regardless of the fact that the other detective was conducting the questioning.
No reasonable excuse for the absence of an electronic recording was offered. Hidden J confirmed, following R v Horton and R v Reid, that the requirements of s 108 are rigorous and that a trial judge has no residual discretion to admit evidence that does not satisfy them. The statement was accordingly rejected.
His Honour noted that it was entirely understandable the officers may not have been conscious of the s 108 requirements at that stage of a complex investigation, and that they did not then believe they had grounds for arrest. However, those circumstances could not overcome the strict statutory requirements.
Orders Made
- Evidence (Cowie's statement to police) rejected.
Key Takeaways
- Section 108 of the Criminal Procedure Act 1986 is engaged as soon as an investigating official forms a suspicion, even where that suspicion arises partway through an interview and is not fully crystallised until after the interview concludes.
- The "critical time" for assessing whether an accused was suspected is not confined to the exact moment an admission is made; it is sufficient that suspicion existed before the statement was completed.
- Where s 108 applies, the absence of an electronic recording renders an admission inadmissible unless the prosecution establishes a reasonable excuse. The Supreme Court confirmed that no residual discretion exists to admit non-compliant evidence.
- A suspicion held by any investigating official present is sufficient to trigger s 108, regardless of which officer was conducting the questioning.
- The Crown's ability to prove the falsity of an otherwise exculpatory statement does not remove the statement from the regime established by s 108; where the Crown relies on an assertion as an admission by reason of its falsity, the electronic recording requirements still apply.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 108 (and its predecessor, s 424A of the Crimes Act 1900 (NSW))
- Evidence Act 1995 (NSW) (definition of "admission")
- Crimes Act 1900 (NSW), s 424A (predecessor provision)
Cases:
- R v Horton (1998) 45 NSWLR 426 (Wood CJ at CL)
- R v Rowe [2001] NSWCCA 1 (Smart J)
- R v Reid [1999] NSWCCA 258 (Smart AJ; Spigelman CJ)