Friday, 14 August 2009

Confirmation of admissions

S 464H(c) of the Crimes Act 1958 says that an admission made to an investigating official by someone who was suspected or ought reasonably to have been suspected of having committed an offence is inadmissible unless,

If the confession or admission was made before the commencement of questioning, the confession or admission was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person and the confirmation was recorded by audio recording or audiovisual recording; ...

What does confirmed by the person mean?

A standard interpretation of this phrase is that s 464H requires investigating officials to confirm their conversation with the accused once the official recording has started by repeating a question-and-answer exchange verbatim and asking the accused to agree that the earlier conversation took place.

While this might be one way for the police to go about complying with s 464, that's not what the provision requires.

In R v Sindoni [2009] VSC 269, the trial judge was required to determine the admissibility of statements said to be made by the accused. This decision was made in the Supreme Court's original jurisdiction so it's not binding (it turns on its own individual facts, anyway) but it does provide a useful demonstration of when a Court has found an admission has been confirmed, and when it has found that it hasn't.

In deciding whether each statement had been confirmed, Bongiorno J laid each stanza of unrecorded conversation alongside the piece of the recorded interview that the prosecution asserted was the confirmation of that admission. He emphasised that he wasn't expecting to see identical words being used. He was looking for words that, "convey substantially the same information" [at 3].

Question: Well, what happened?

Answer: I had a fight with the bouncer and he king hit me.

Question: What happened then?

Answer: He wouldn’t let me back in.

This was compared with the later interview, where this exchange occurred,

Question: Okay. What time would that have been?

Answer: I couldn’t tell you but if you check the video you can see him punching me in the face and I just walked off and I thought “you’re fuckin’ kidd’n, mate”.

Question: Who punched you in the face?

Answer: Well, one of the security guards.

The conversations were held to be substantially the same, and the earlier conversation admitted.

In the next unrecorded conversation,

Question: Then what happened?

Answer: I went back to the club and shot the bouncer.

The prosecution claimed this was confirmed on tape by,

Question: Okay. I put it to you that you admitted to police in my presence this afternoon that you were involved in a shooting incident; what do you have to say about that?

Answer: I was just scared, mate.

The court rejected the claim that this constituted confirmation of the alleged earlier conversation.

Finally, the prosecution alleged,

Question: Aaron, where is the gun now?

Answer: It’s at a mate’s.

Question: Where?

Answer: 250 Hope Street, Brunswick.

was confirmed by the accused saying in interview,

Question: Okay. I put it to you that we’ve asked you where, where a handgun was located?

Answer: Yeah, yeah.

Question: Okay. And what did you... do you remember what we told you or what you told us?

Answer: Well, I told you it was at – at – at Hope Street.

Bongiorno J accepted that these exchanges were substantially similar, and admitted the earlier unrecorded admission. Of course, just because they were admitted did not mean it was accepted that the admissions were made. That factual issue was for the jury to decide later.


Jeremy Gans said...

I'm not so sure about this decision. S464H(1)(c) requires that 'the substance of the confession or admission was CONFIRMED". I think that confirming an earlier admission requires that the defendant acknowledge having said the earlier words (or at least their substance), rather than just giving answers to similar effect. It seems to me that this only occurred in the third example (though maybe Bongiorno's quotes don't cover the framing questions for the other two.)

Bongiorno's approach doesn't really make sense, as you have to wonder why the recorded admissions wouldn't suffice. I realise that Sindoni (allegedly) said more off-the-tape, but it'd be dodgy if the prosecution sought to rely on the difference between the two as crucial. That'd just be an invitation to verballing, as cops could claim to that the defendant's on-the-record admissions were augmented by more detailed unrecorded admissions. Hence, the necessity to require that the earlier admissions are clearly referenced, both so the suspect knows what he's 'confirming' and the court can be sure that the suspect did actually say something similar on an earlier occasion.

Once the UEL comes into force, any record the cops kept of what the suspect said to them would be inadmissible unless the suspect signed it: s86. The cops would therefore have to speak from memory...

Dr Manhattan said...

Under the new Act the document itself wouldn't be admissible unless signed, but the investigator wouldn't be likely to be relying solely on their memory.

Section 33 offers the Old Bill a significant forensic advantage over the existing system. The new Evidence Act will allow them to read from their notes in the witness box. A bit difficult to assess the veracity of a witness when they're just reading, I'd have thought.

Evidence that goes outside the recorded conversation would very probably attract the sort of warning discussed by the High Court in McKinney v R (1991) 171 CLR 468.

Jeremy Gans said...

That certainly is the literal meaning of ss 33 & 86. But s33 so undermines s86 that there's a chance that s86 will be read as overriding s33 when it comes to records of confessions.

You're right about McKinney. There's also a slight chance of exclusion under s90...

Kyle said...

I wonder just how often 464H(1)(c) really has any work to do.

The question occurs when an accused person says words off-tape to the effect of, "I did this crime you accuse me off" and then says on-tape something the prosecution says is equivalent to, "Before you started recording me, I said words to the effect of 'I did this crime you accuse me of'."

Not only is this infrequent, it is rare that an accused will admit their previous admission and not admit the allegation during the tape-recorded interview anyway. It's far more likely the prosecution will rely on the admission made during the tape-recorded interview, rather than before.

The new Evidence Act you both mention might apply in such a scenario, but I think they would be a bit artificial in any event.

Both concern admissibility or use of a document. In the event of s 33, it relates to a police officer referring to their notes, but says nothing about them simply relying on their memory. (Yes, that would raise questions about the credibility and reliability of the remembered conversation, but that's a separate issue.)

Section 86 provides that the record of the oral questioning and responses is inadmissible. This is similar to the old typed record-of-interview commonly used before s 464H. This type of questioning most frequently occurs these days in the summary interview, colloquially known as the "I-said, he-said" interview. (Although s 86 renders the documentary record inadmissible, it doesn't touch on the police officer re-telling the conversation purely from memory.

I think the real issues in such cases will revolve around ss 138 and 139.

138 requires improperly obtained evidence to be excluded, subject to certain considerations. It's similar to the Christie discretion, or the probative v prejudicial discretion.

Right now, an investigating official is not obliged to caution or provides rights of communication etc to a person not in custody as defined in s 464(1) of the Crimes Act. But Evidence Act 2008 s 139(2) provides that evidence of a statement by an accused person is considered improper if no caution was provided when the investigating official had no power of arrest and after the investigating official believed they had sufficient evidence to establish the person committed an offence.

Jeremy Gans said...

Elucrubator, I'm not sure that s139 is all that significant. Section 464(1)(c) expands the definition of custody to include being in the company of an investigator who's investigating you, including questioning and proposed questioning. Hard to see how that wouldn't be satisfied but s139(2) would be, though I guess it's possible. Also, s138 talks of impropriety at large, which can cover situations that fall outside of either provision (though the High Court thumbed its nose at that concept in Em v R.)

Also, note a caveat about s464H (in this blog on summary offences): it only applies in proceedings for indictable offences. So, s86 (for what it's worth) will be more important in summary matters. But, looking closely at it, it's limited to admissions in response to questioning or a representation by an investigator, rather than just admissions (allegedly) blurted out without prompting.

All up, there're still plenty of ways to verbal someone in Victoria....

Kyle said...

Yeah, but Crimes Act s 464(1)(c) is a little narrower than that. It provides that a person is in custody (and hence entitled to things like a caution and rights of communication) when that person is in the company of an investigating official and to be investigated (my paraphrase) to determine their involvement in an offence if the investigating official has sufficient information to justify arresting the person for that offence they're questioned for.

The critical limb here — often missed by police and lawyers alike — is the potential for arrest for the self-same offence the investigation is about. For example, a police officer investigating summary trespass must have sufficient information to justify arresting the person before s 464(1)(c) operates.

The generic summary-offence power of arrest is s 458. Usually, it's s 458(1) — which restricts arrest (for summary offences) to one of four prescribed purposes. There are miscellaneous arrest provisions like Summary Offences Act s 13 (drunk in public) and Road Safety Act s 76 (not providing identity particulars for specified driving offences).

A common scenario now is for police to question a person about a summary trespass, or careless driving (say, a rear-end car collision) or using a mobile phone when driving. There is no statutory provision that requires a caution in those circumstances when there's no potential for arrest. (I've had many an argument if the common law requires one — but that's a separate point, and one that's about to become obsolete by virtue of Evidence Act 2008 s 139.)

This is where I think s 139(2) will make a big difference to the way the police do business. For example, a very large number of the cases our summary courts deal with every day are traffic offences where the police had no power of arrest, and asked questions of the driver without providing a caution — quite lawfully in my view, because they're not required to do so — and then rely at court on inculpatory statements made by the driver.

In these cases, s 139(2) will result in no caution equating to improperly obtained admission, and result in discretion to exclude under s 138. (I agree absolutely that s 138 has a much broader role than just this.)

Your point about verballing is quite right though. I don't understand why the legal system doesn't just take advantage of technology to obviate debates about who said and did what during all dealings with police and require routine recording.

Jeremy Gans said...

Good point. Now I look at it, s139(1) would also apply in this circumstance, by virtue of s139(5)'s extended definition of 'under arrest', which also covers the 'sufficient evidence' idea but refers to 'sufficient evidence to establish that the person has committed the offence', rather than to arrest the person.

There might be an interesting question about whether or not s464(1)(c)'s reference to 'arrest' should be interpreted to mean the same thing as s139(5)(a), e.g. in light of the Charter....

One other thing to look out for: will s139(5)(a) apply to events that occurred before the section's commencement? If so, then the traffic cops better start changing their practices pretty quickly... [Ah, but now I see that, in NSW, a transitional provision prevented that from happening. Same thing will happen here, I guess...]

Kyle said...

Evidence Act 2008 s 139(5) is very similar in this regard to Crimes Act 1958 s 464(1)(c). It also effectively imports the common-law notion of arrest, such as in O’Donoghue (1988) 34 A Crim R 397 at 401, where a police officer says or does something that makes it clear the 'suspect' is not free to go, but doesn't actually pronounce the words "I arrest you" or lay hands on the suspect. In those circumstances, a caution will also be required.

The operation of the transitional provisions is the $64-million question! Odgers says he understands Victoria will introduce the new Evidence Act similarly to NSW: with a hard change-over date.

That has a nice delineation to it, and is consistent with the notion that there is no retrospective legislating going on when considering procedural provisions, because they are considered at the time of a hearing or trial, rather than the time of the acts founding the cause of action. (Though that is not a settled controversy.)

The drawback of such a change is that investigations done today in accordance with today's evidence law might become inadmissible under tomorrow's new evidence regime. Hardly seems right.

Yet, isn't this what happens with historical sex offences (for example) that are alleged from twenty and thirty years ago?

However, other folks I speak with who claim to be in the know, say the new evidence laws will apply to transactions that occur after the commencement date.

But that could see us running two separate evidence regimes simultaneously for many years. It would mean that current investigations and offending that does not reach the courts till after the commencement date (and also commenced but un-finished proceedings) would continue under the current provisions. Such cases could be before the courts for many years to come.

Perhaps it will be a middle ground: the new laws apply to all cases after the commencement date, provided that if something was admissible under previous law, it won't be excluded by any new provision?

I understand the start date is intended to be 1 November 2009 — which doesn't leave long for the relevant legislation to be tabled and passed.

Jeremy Gans said...

Yes, I've also heard of both versions too. I think that only the hard transition date is workable in general, but there's room for a delay in some provisions that are clearly aimed at changing past behaviour, including ss 114, 115 and 189. Indeed, that's what happened in NSW. As for applying both common law and UEL simultaenously in every trial?: oh, the humanity.

Either way, it is ridiculous that these matters are still being worked through. The 1st November 2009 starting date looks impossible. Indeed, I can't understand why it was ever favoured. Surely, 1st January 2010 is the best time to start, as that's the day when there are the fewest trials in progress?

Kyle said...

Funnily enough, today I was told that 1 Jan 2010 is now THE commencement date. Mind you...there's absolutely no mention of any such legislation in the last two months of Parliamentary sittings, and Parliament doesn't return till 1 September.

I agree: 1 November sounds unrealistic. I also agree it's puzzling that we still have no detail.

For example, all the remote-witness & video-link stuff in Part 2A of the current Evidence Act will need re-enacting. NSW has separate legislation for that purpose; we'll need similar legislation too.

And transitional provisions would be nice...