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Court of Criminal Appeal 24 November 2006

R v Frangulis

[2006] NSWCCA 363

Fraud & dishonesty
CRIMINAL LAW: ADMISSIBILITY OF EVIDENCE ADMISSIONS TO POLICE OFFICER ADMISSIONS TO INSURANCE INVESTIGATOR WHETHER UNFAIR TO ADMIT THAT EVIDENCE.

Citation: R v Frangulis [2006] NSWCCA 363
Court: New South Wales Court of Criminal Appeal
Date: 24 November 2006
Judge(s): Giles JA, Grove J, Hidden J (Hidden J delivering the principal judgment)

Background

The respondent, the owner of a Hurstville restaurant, faced a charge of dishonestly damaging property by fire with intent to gain under s 197(b) of the Crimes Act 1900. The Crown alleged he set fire to his own restaurant using time-delay incendiary devices on 20 May 2002. Key to the Crown case was evidence that alarm records confirmed he was the last person in the premises before the fire broke out.

Two categories of admissions were tendered by the Crown. The first was a statement made by the respondent to Detective Sergeant Thornton in the early hours of 21 May 2002, which was not tape recorded despite recording facilities being available. The second comprised two recorded interviews with a private investigator, Mr Robert King, engaged by the restaurant's insurer. Evidence emerged that King had also been acting on behalf of the police.

After a lengthy voir dire, the trial judge rejected both categories of evidence. The Director of Public Prosecutions appealed under s 5F(3A) of the Criminal Appeal Act 1912, on the basis that the ruling substantially weakened, if not eliminated, the Crown case.

  • Whether the respondent was "reasonably suspected" of committing an offence when Detective Thornton took his unrecorded statement, and whether s 281 of the Criminal Procedure Act 1986 therefore applied to exclude it
  • Whether, assuming s 281 applied, there was a "reasonable excuse" for the failure to tape record the statement
  • Whether it would be unfair under s 90 of the Evidence Act 1995 to admit the interviews conducted by the insurance investigator, given that he was also acting on behalf of police

Decision

The statement to Detective Thornton: The Court upheld the trial judge's finding that Thornton reasonably suspected the respondent of having committed an offence at the time the statement was taken. The detective had been present at the scene where incendiary devices were found, made inquiries from fire investigators, and took the statement in circumstances consistent with suspicion. The Court found that his evidence to the contrary on the voir dire was rightly rejected by the trial judge.

Because s 281 applied, the admission was only admissible if there was a reasonable excuse for the absence of a tape recording. On this point, the trial judge was not satisfied that any such excuse existed, and the Court of Criminal Appeal agreed. The statement to Detective Thornton remained excluded.

The interviews with the insurance investigator: The trial judge had excluded the King interviews under s 90 of the Evidence Act, which allows a court to refuse to admit evidence of admissions where it would be unfair to the defendant to use it. The Court of Criminal Appeal found the trial judge had not properly applied the test for s 90, which requires a focus on whether it would actually be unfair to the accused for the evidence to be used at trial, rather than solely on whether the conduct of the investigators was improper.

There was nothing in the evidence to suggest the respondent believed his answers to King could not be used against him, and no basis for concluding he had been misled. The Court held the interview of 27 May 2002 was admissible. Evidence of improper or imprudent conduct is relevant to the s 90 discretion but is not, by itself, determinative of it.

Orders Made

  • Appeal allowed in part
  • Matter remitted to the District Court to be dealt with in accordance with the Court of Criminal Appeal's reasons

Key Takeaways

  • Under s 281 of the Criminal Procedure Act 1986, an unrecorded admission is inadmissible where the accused was, or could reasonably have been, suspected of an offence at the time of questioning by an investigating official. A detective's own characterisation of a person as a "victim" rather than a suspect is not determinative; courts will look at the full circumstances known to the officer at the time.
  • The absence of a tape recording is only excused where the prosecution establishes a reasonable excuse. Mere availability of recording facilities without a satisfactory explanation for non-use will not suffice.
  • Where an insurance investigator also acts on behalf of police, the arrangement does not automatically render resulting admissions inadmissible. The central question under s 90 is whether it would be unfair to the accused to use the evidence at trial, not simply whether the conduct of those obtaining it was improper or imprudent.
  • Improper conduct by investigators is relevant to the s 90 discretion but does not determine its outcome. The basal question remains one of actual unfairness to the accused.
  • The Court of Criminal Appeal confirmed the approach in EM v Regina [2006] NSWCCA 336 and R v Em [2003] NSWCCA 374, reinforcing that s 90 requires a defendant-focused unfairness inquiry rather than a purely conduct-focused one.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 197(b)
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), ss 84, 90, 135, 137, 138, 139

Cases:
- R v Taouk (2005) 154 A Crim R 69
- R v Em [2003] NSWCCA 374
- The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159
- EM v Regina [2006] NSWCCA 336