Citation: R v Linda Maree Troutman [2013] NSWDC 316
Court: District Court of New South Wales
Date: 2 October 2013
Judge: Tupman DCJ
Background
The accused stood trial (judge alone) on a charge of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act 1900, arising from an incident at a Redfern apartment building on 30 June 2012. The Crown alleged she broke into a dwelling, stole several documents and a mobile phone, and was armed with an offensive weapon at the time.
Shortly after her arrest at the scene, an investigating officer asked the accused two questions without tape-recording the exchange. The officer asked how her bail slip came to be in a letterbox alongside the victim's stolen passport and citizenship certificate, and who owned a pensioner bus ticket found near a bin containing the victim's Centrelink document. Her answers were recorded only in a notebook, some two hours after the conversations occurred.
The Crown sought to tender these answers as admissions at trial. The accused objected, triggering a voir dire (a preliminary hearing within the trial to determine admissibility of evidence) on whether the prosecution could satisfy the requirements of s 281 of the Criminal Procedure Act 1986.
Legal Issues
- Whether the two verbal statements made by the accused to police at the scene were admissible as admissions under s 281 of the Criminal Procedure Act 1986
- Whether the prosecution had established a "reasonable excuse" for the absence of a tape recording, as required by s 281(2) and s 281(4)
- Whether the circumstances at the scene, particularly the availability of recording equipment, could justify departing from the strict recording requirement
Decision
Section 281(2) provides that evidence of an admission is not admissible unless a tape recording is available. The only pathway for the prosecution was to establish a "reasonable excuse" under s 281(4). That subsection lists recognised excuses, including mechanical failure, the suspect's refusal to be recorded, and the unavailability of recording equipment within a period in which it would be reasonable to detain the person. None of the first two applied, and the Crown relied on the third.
Tupman DCJ found that the Crown had not established a reasonable excuse. The incident occurred at a Redfern apartment building, not in a remote location where access to recording equipment would be physically difficult. The judge accepted that the officer had not acted to trick the accused and had probably not turned his mind to admissibility at the time, but good faith alone does not satisfy the statutory requirement.
The judge applied the principle confirmed in R v Reid [1999] NSWCCA 258 that the requirements of s 281 are precise and rigorous. The Court noted, following Hulme J in R v White and Ors (No 5) [2012] NSWSC 469, that the provision draws a deliberate distinction between police investigating freely and the prosecution later relying on unrecorded admissions in court proceedings. Those prosecutorial requirements must still be met.
Both statements were excluded. The judge noted, however, that the physical evidence (including the location of the documents and the bail slip) remained before the court, and the inferences available from that evidence could still be considered at trial.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 281(2) of the Criminal Procedure Act 1986, verbal admissions made to police are prima facie inadmissible without a tape recording, unless the prosecution proves a reasonable excuse for the absence of one.
- A notebook record of the conversation, made approximately two hours after the fact, does not satisfy the tape-recording requirement and cannot substitute for it.
- The District Court held that the prosecution had not established reasonable excuse where the questioning took place at an inner-city location and recording equipment was not shown to be unavailable within a reasonable detention period.
- Good faith on the part of the investigating officer, and an absence of any suggestion of trickery, is not sufficient to establish reasonable excuse under s 281(4).
- The strict and rigorous application of s 281 reflects deliberate policy: police investigations may proceed freely, but the rules governing admissibility of resulting admissions in court proceedings remain demanding.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Criminal Procedure Act 1986 (NSW), s 281(2), s 281(4)
Cases:
- R v Reid [1999] NSWCCA 258
- R v White and Ors (No 5) [2012] NSWSC 469