Citation: Director of Public Prosecutions (NSW) v Cottrell [2013] NSWLC 23
Court: Local Court of NSW
Date: 26 July 2013
Judge(s): Magistrate Favretto
Background
A serving NSW Police officer faced a charge of bribery under the Police Act 1990, alleged to involve passing information about motor vehicle accident locations to tow truck operators in exchange for money. The maximum penalty on indictment was seven years' imprisonment, though the matter was being dealt with in the Local Court by consent.
The prosecution's key evidence consisted of oral admissions the accused allegedly made to a fellow officer, Constable Vrahas, during an informal conversation while both were on duty. That conversation began when Constable Vrahas raised his own anxieties about a Professional Standards investigation and escalated as the accused, apparently voluntarily, disclosed that he had been texting accident locations to tow truck drivers and receiving payments for doing so.
The accused objected to the admissibility of those admissions. A voir dire (a preliminary hearing to determine admissibility) was held before Magistrate Favretto. The central question was whether the conversation, or part of it, constituted "official questioning" by an "investigating official" under s 281 of the Criminal Procedure Act 1986, triggering a requirement for electronic recording.
Legal Issues
- Whether Constable Vrahas was an "investigating official" within the meaning of s 281 of the Criminal Procedure Act 1986 at the time the admissions were made.
- Whether any part of the conversation amounted to "official questioning" under s 281, such that the absence of an electronic recording would render the admissions inadmissible.
- Whether the prosecution had established a "reasonable excuse" for failing to electronically record the relevant portion of the conversation.
Decision
Magistrate Favretto examined the conversation in two distinct phases. The first phase, in which Constable Vrahas vented his own concerns and asked in a general, informal way whether the accused had also texted the tow truck drivers, was found to be casual conversation between colleagues. At that point, Constable Vrahas was not acting as an investigating official and the exchange did not constitute official questioning.
The position changed materially when the accused disclosed that he had been messaging accident locations and had received money for doing so. Once the accused became directly implicated in conduct that was the subject of a Professional Standards investigation, Constable Vrahas crossed a threshold. From that point, his continued questioning was found to constitute "official questioning" by an "investigating official" within s 281. Magistrate Favretto applied the metaphor of crossing the Rubicon to describe the moment the conversation changed in character.
The court identified the precise point of transition as the moment Constable Vrahas said words to the effect of "They are going to think it's me." Everything said by the accused after that point was the product of official questioning without electronic recording. The prosecution made no submission that any "reasonable excuse" existed for the failure to electronically record the admissions from that point onward, and the court accepted the accused's submission that no such excuse existed.
Accordingly, the court ruled that Constable Vrahas's evidence of the conversation from the moment of the accused's bribery disclosure onwards was inadmissible under s 281(2). The earlier portion of the conversation, before that threshold was crossed, was not excluded by s 281 on this ruling, though the accused indicated a wish to make further submissions about that earlier material under ss 139 and 90 of the Evidence Act 1995 if s 281 did not apply to it.
Orders Made
• The evidence of Constable Vrahas after the words "I said something like, 'They are going to think it's me'" will be inadmissible.
Key Takeaways
- Section 281 of the Criminal Procedure Act 1986 does not automatically apply from the outset of every conversation involving a police officer and a colleague. The provision is triggered only when a person is being questioned by an "investigating official" in connection with the investigation of an offence.
- A conversation can begin as informal colleague discussion and transition mid-way into "official questioning" for the purposes of s 281. The court assessed the character of the exchange at each point in time, rather than treating it as a single, uniform interaction.
- Under s 281, once the questioning of a suspect crosses into official territory, the absence of electronic recording renders the resulting admissions inadmissible unless the prosecution establishes a reasonable excuse for the failure to record.
- Sufficient evidence existed for the court to find that Constable Vrahas became an investigating official at the point when the accused's direct involvement in the subject matter of the Professional Standards investigation became apparent during the conversation.
- The prosecution's failure to advance any "reasonable excuse" argument was decisive in the court's ruling that the admissions made after the critical moment were inadmissible.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), ss 90, 139, 142
- Police Act 1990 (NSW), ss 200, 207(2)
Cases:
- Bryant v R [2011] NSWCCA 26
- Carr v The State of Western Australia [2007] HCA 47
- Kelly v The Queen [2004] HCA 12
- Nicholls v The Queen [2005] HCA 1
- R v Horton (1998) 45 NSWLR 426
- R v Naa [2009] NSWSC 851
- R v Reid [1999] NSWCCA 165
- R v Robinson [2003] NSWCCA 188
- R v Rowe [2001] NSWCCA 1
- R v Sharp [2003] NSWSC 1117
- R v Taouk [2005] NSWCCA 155