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Supreme Court 5 April 2012

R v White & ors (No 5)

[2012] NSWSC 469

Public order & justice offences
CRIMINAL LAW EVIDENCE ADMISSIONS NO ELECTRONIC RECORDING S 281 CRIMINAL PROCEDURE ACT 1986 ADMISSIONS MADE IN VICTORIA

Citation: R v White & ors (No 5) [2012] NSWSC 469
Court: Supreme Court of New South Wales
Date: 5 April 2012
Judge: R A Hulme J

Background

The accused was charged with murder allegedly committed at a caravan park in northern New South Wales in December 2008. He was arrested in Victoria in September 2009 as part of a planned police operation. The self-defence issue had been flagged by defence counsel as the central question at trial.

Following his arrest, a Victorian detective remained with the accused at the rural property. During a period when the accused was permitted outside for a cigarette, he initiated a conversation that included statements placing himself at the scene of the alleged murder. The detective recorded the conversation in contemporaneous handwritten notes, consistent with standard Victorian police practice.

The Crown sought to lead evidence of those statements as admissions at the NSW trial. Defence counsel objected on the ground that the admissions had not been electronically recorded, as required by s 281 of the Criminal Procedure Act 1986 (NSW).

  • Whether s 281 of the Criminal Procedure Act 1986 applied to admissions made in Victoria by a person suspected of a NSW indictable offence
  • Whether Victorian police following their standard practice of not electronically recording field admissions constituted a "reasonable excuse" within the meaning of s 281(2)(b)
  • Whether the accused's later exercise of his right to silence (responding "no comment" when the notes were read back at the police station) provided any alternative basis for admissibility

Decision

Hulme J held that s 281 plainly applied to the admissions. The accused was suspected of committing a NSW indictable offence, the questioning was conducted by investigating officials, and the statements were relied upon as admissions. Nothing in the section limited its operation to admissions made within New South Wales.

The Crown's primary argument was that Victorian police following their standard field procedure, which involved handwritten notes rather than electronic recording, constituted a "reasonable excuse" for the absence of a tape recording. Hulme J rejected this. The definition of "reasonable excuse" in s 281(4), while not exhaustive, lists mechanical failure, refusal by the suspect, and unavailability of equipment as examples. The detective had recording equipment readily at hand. Compliance with a different jurisdiction's practice did not provide an equivalent justification under the NSW legislative scheme.

The Crown also relied on the analogy with R v Workman (2004) 60 NSWLR 471, where admissions recorded in Queensland without NSW-compliant procedures were held admissible. Hulme J distinguished that case on its particular facts. The court also referred to R v Reid [1999] NSWCCA 258 and CL v DPP (NSW) [2011] NSWSC 943, which reinforced that the recording obligation extends to field questioning, and that practical inconvenience does not satisfy the reasonable excuse threshold.

Although Hulme J noted there was no unfairness in how the detective conducted himself (the accused initiated the conversation, was reminded of his caution, and had the notes read back to him promptly), unfairness was not the operative test. The statutory requirements of s 281 had not been met, and no reasonable excuse had been established. The evidence was inadmissible.

Orders Made

• The evidence of the conversation between Detective Cocks and the accused White was ruled inadmissible due to the failure to make an electronic recording without reasonable excuse.

Key Takeaways

  • Section 281 of the Criminal Procedure Act 1986 (NSW) applies to admissions made outside New South Wales, provided the other statutory conditions (suspicion of a NSW indictable offence, official questioning, indictable character of the offence) are satisfied.
  • Compliance with the standard field practice of another jurisdiction's police force does not automatically constitute a "reasonable excuse" for the absence of electronic recording under s 281.
  • Where recording equipment is readily available, the absence of a tape recording is difficult to excuse, regardless of the investigating officer's professional good faith or adherence to their own jurisdiction's procedures.
  • The accused's exercise of the right to silence when the notes were later read back did not cure the original failure to record: it only excused the non-production of a confirmatory recording under s 281(2)(a)(ii).
  • Under the NSW statutory framework, the expectation that police will use electronic recording devices even in the field has been consistently reinforced by the courts, from R v Reid through to the 2011 decision in CL v DPP (NSW).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW)
- Crimes Act 1900 (NSW), s 424A (precursor provision, discussed historically)
- Crimes Act 1958 (Vic)
- Listening Devices Act 1984 (NSW) (repealed)

Cases
- R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 471
- CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943
- R v Reid [1999] NSWCCA 258
- R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408