Citation: R v Godfrey (No 4) [2023] NSWSC 1315
Court: Supreme Court of New South Wales
Date: 29 March 2023
Judge: Cavanagh J
Background
The accused was brought into Day Street Police Station and placed in a custody dock. While being processed, the accused made a series of statements to the custody officer, Constable Gan, that included what was effectively an admission: the accused said he had applied a "rear naked choke" to the alleged victim, and that he had trained for four years in Brazilian jiu-jitsu. Constable Gan engaged in a short exchange with the accused during this processing, asking where the accused learned the technique and what belt he held.
Constable Gan did not audio- or video-record this exchange. He was not wearing a body worn camera, consistent with the practice at Day Street's custody section. He later recorded the relevant words in his police notebook because, as he accepted in cross-examination, he recognised they could be relevant to the investigation. The Crown sought to tender the portion of Constable Gan's statement containing these words at trial.
The accused objected to the tender on the basis that the admission had not been recorded as required by s 281 of the Criminal Procedure Act 1986 (NSW). The court heard evidence from Constable Gan on a voir dire (a mini-hearing to determine admissibility) before ruling on the objection.
Legal Issues
- Whether the exchange between Constable Gan and the accused constituted "official questioning" within the meaning of s 281 of the Criminal Procedure Act 1986 (NSW).
- Whether, given the absence of any recording, the Crown had established a "reasonable excuse" under s 281(2) sufficient to permit the admission into evidence.
- Specifically, whether Constable Gan's belief that the exchange was merely a conversation (rather than official questioning) could constitute a reasonable excuse for the failure to record.
- Whether the failure by officers conducting the formal ERISP interview (electronically recorded interview with suspected person) to raise the admission provided an alternative basis for reasonable excuse.
Decision
Both parties agreed that s 281(1) was satisfied: the admission was made by a person who was, or could reasonably have been, suspected of an offence; it occurred in the course of official questioning; and it related to an indictable offence not triable summarily without consent. The sole contest was whether the Crown had established a reasonable excuse for the absence of a recording under s 281(2).
Cavanagh J rejected Constable Gan's characterisation of the exchange as a casual conversation. The officer's own statement recorded that he had asked the accused "several questions" while processing him into custody, and the objected-to words followed directly from those questions. The court inferred that body worn video equipment was available at the station, even if not worn in the custody section as a matter of practice.
The Crown argued that Constable Gan's genuine belief that he was merely conversing with the accused (rather than conducting official questioning) provided a reasonable excuse. Cavanagh J rejected this submission. The word "reasonable" in s 281(2) requires objective assessment, and a subjective belief that recording was unnecessary does not, when assessed objectively, constitute a reasonable excuse. None of the non-exhaustive examples provided in s 281(4), including mechanical failure, refusal to be recorded, or unavailability of equipment, applied here.
The Crown also argued that the failure to raise the admission during the formal ERISP interview was excused because the interviewing officers and the Officer in Charge were unaware of it. The court noted that Constable Gan had written the admission in his notebook precisely because he considered it relevant. The proposition that a police officer's failure to communicate relevant information to colleagues could itself constitute a reasonable excuse was described as unattractive, though the court did not need to resolve that question finally, having already found no reasonable excuse for the failure to record in the first place. The tender was rejected.
Orders Made
The tender of the objected-to portion of Constable Gan's statement was rejected.
Key Takeaways
- Section 281 of the Criminal Procedure Act 1986 (NSW) operates purposively to prevent unrecorded admissions from entering evidence, reflecting a legislative intent to guard against so-called "verbals" in the investigative process.
- A police officer's subjective belief that an exchange amounted to a casual conversation, rather than official questioning, does not satisfy the "reasonable excuse" requirement in s 281(2), which must be assessed objectively.
- The non-exhaustive list of reasonable excuses in s 281(4), covering mechanical failure, refusal to be recorded, and unavailability of equipment, sets the general character of what may qualify; a practice of simply not wearing body worn cameras in a custody area does not fit within that character.
- Where an officer records an admission in a police notebook on the basis that it appears relevant to an investigation, that conduct is inconsistent with any later claim that recording the questioning was unnecessary or that the exchange was not recognised as official.
- The court left open, without deciding, whether a failure to pass relevant information to other officers conducting a formal ERISP interview could ever constitute a reasonable excuse for the absence of a recording.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 281 (admissions by suspects, including the definitions of "investigating official", "official questioning", "reasonable excuse", and "tape recording")
- Evidence Act 1995 (NSW) (referenced within s 281 in relation to the hearsay rule and opinion rule)
Cases cited: No cases were cited in the judgment.