Karstaedt, Anthony --- "Videotaping Police Interviews With Suspects" [1997] MurdochUeJlLaw 7; (1997) 4(1) Murdoch University Electronic Journal of Law

Videotaping Police Interviews with Suspects

Author:	Anthony Karstaedt Bar Chambers, Perth
Issue:	Volume 4, Number 1 (March 1997)

Introduction

1. Chapter 60A, headed "Videotaped Interviews", was inserted into the Criminal Code (WA) by s 5 of the Acts Amendment (Jurisdiction and Criminal Procedure) Act 53 of 1992. This new chapter, which contains sections 570 to 570H, came into operation on 4 November 1996, almost four years after the amending Act was assented to on 9 December 1992. Subject to stated exceptions, s 570D, the key provision, renders inadmissible on the trial of an accused person for a serious offence, as defined, evidence of an admission made by the accused to a police officer at a time when there were reasonable grounds to suspect that he had committed the offence, unless the evidence is on videotape.

Background

2. The introduction of Chapter 60A occurred after much discontent by the judiciary and the legal profession about the recording by police of admissions made by suspects. In 1975 the Australian Law Commission reported on the desirability of police officers using electronic equipment when interviewing suspects, after which video equipment was installed in most of the major centres in Australia. In Mallard v The Queen[1] Malcolm CJ referred[2] to a number of cases where the court had

"repeatedly stressed the desirability of the use of video equipment where it is available and ... criticised the practice of using the video equipment as a means to obtain corroboration of a confession or admission previously made in an earlier unrecorded oral interview."

His Honour stated[3] that it was a matter of great regret which left the criminal justice system open to significant criticism and a substantial waste of police and court time and money that Act 53 of 1992 had not yet been proclaimed. As a result, His Honour said, police evidence continued to be open to challenges which would not otherwise be available. This state of affairs, he pointed out, was manifestly against the public interest. His Honour also pointed out that while the Commissioner for Police's Guidelines for Video Tape Recording of Interviews with Suspects, which took effect from 1 May 1993, express the desirability of audio-visual recording of police interviews in the case of major indictable offences carrying a term of imprisonment exceeding 14 years, it was apparent that this was not applied in practice.

Section 570D

3. Section 570D(2) of the Criminal Code provides:

(2) On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless -

(a) the evidence is a videotape on which is a recording of the admission; or

(b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission; or

(c) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

"Serious offence" is defined in ss (1) as:

an indictable offence of such a nature that, if a person over the age of 18 years is charged with it, it cannot be dealt with summarily, and in the case of a person under the age of 18 years includes any indictable offence for which the person has been detained.

"Admission" is defined in ss (1) as an admission made by a suspect to a member of the Police force, whether the admission is made by spoken words or by acts or otherwise.

In terms of subsection (4), "reasonable excuse" for the purposes of subsection (2)(b), includes the following:

(a) The admission was made when it was not practicable to videotape it.

(b) Equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person.

(c) The accused person did not consent to the interview being videotaped.

(d) The equipment used to videotape the interview malfunctioned.

Subsection (3) provides that ss (2) does not apply to an admission by an accused person made before there were reasonable grounds to suspect that he or she had committed the offence. Also, as has been indicated, the definition of "admission" in ss (1) requires it to have been made by a "suspect"[4].

4. A question arises here whether an accused arguing for the exclusion of evidence of an admission which is not on videotape is required to establish that the relevant admission was made at a time when there were reasonable grounds to suspect that he had committed the offence, or whether the prosecution has to prove that there were no such reasonable grounds. Without attempting to predict how our courts will answer this question, it is noted that it has been held[5] that for the purposes of s 23V(1) of the Crimes Act 1914 (Cth) dealing with the tape recording of confessions and admissions, which is directed to a person who is "being interviewed as a "suspect", it was incumbent on the accused to demonstrate that he was being interviewed as a suspect when the relevant admission was made.
5. The legislation does not expressly state whether the operation of s 570D is retrospective and therefore whether its provisions apply to interviews conducted prior to 4 November 1996. While an amending enactment is prima facie to be construed as not affecting existing rights[6], it is arguable that s 570D is concerned with procedural or evidentiary matters only and does not affect or impair existing rights as such. If this is correct, it is not subject to the presumption against retrospectivity[7]. It was accepted by Templeman J (sitting alone) in The Queen v Rose[8] that s 570D does operate retrospectively.
6. Accepting that s 570D is retrospective, admissions made prior to 4 November 1996 that are not recorded on videotape might nevertheless be held to be admissible pursuant to ss (2)(b) read with ss (4), or ss (2)(c). While the ways of establishing reasonable excuse under ss (2)(b) are not limited to those mentioned in ss (4), it is doubtful that the fact that there was previously no rule of law or practice requiring police interviews to be videotaped, at least not up to 22 June 1995 (as to which see below), would in itself constitute reasonable excuse under ss (2)(b) or exceptional circumstances under ss (2)(c). A contrary approach would circumvent a retrospective operation of the section.
7. It is unclear whether s 570D requires the entirety of a police interview to be recorded on videotape before a particular video-recorded admission becomes admissible. The ordinary meaning of s 570D(2), leaving aside for the moment the definition of "videotape" in s 570(1), appears to convey that the recording on videotape of a police interview in its entirety is not required[9]. The view that s 570D does not require the entire police interview to be recorded on videotape may be thought to gain some support from the comments of the Minister who introduced the relevant Bill in the Legislative Assembly[10].
8. However, s 570(1), the interpretation section, provides that, unless the contrary intention appears, videotape means "any videotape on which is recorded an interview....", and "interview" is defined in s 570(1) to mean an interview with a suspect by a member of the Police Force. This appears to require s 570D(2)(a) to be read, unless the contrary intention appears, as providing that evidence of an admission shall not be admissible unless "the evidence is a videotape on which is recorded an interview with a suspect by a member of the Police Force and on which is a recording of the admission". Overlooking that what this would expressly require to be recorded is "an interview" rather than the interview in which the relevant admission or admissions were made, this would seem to entail that s 570D does require the entirety of an interview to be recorded on videotape before a particular admission becomes admissible.
9. The contrary interpretation, however, might proceed on the basis that the applicability of the definition of "videotape" to s 570D is displaced by a contrary intention appearing from s 570D that only the relevant admission need be on videotape, and that the definition of "videotape" is intended to apply only to sections dealing with matters such as offences in relation to videotapes[11]. While the position is unclear, it may be remarked that it appears a somewhat odd way for the legislation to express an intention that an entire interview has to be recorded on videotape to require the definition of "videotape" in s 570(1) to be applied to wording which on its face suggests that only the particular admission sought to be relied on need be so recorded[12].
10. If s 570D is to be interpreted as requiring only the particular admission relied on, and not the entire interview, to be on videotape, its success in redressing the problems identified by Malcolm CJ in Mallard[13], referred to above, is likely to be limited. As was said in Kelly v The Queen[14]:

"It is obvious that if, with video facilities available, the interviewing officers use it only selectively in the course of interviewing a suspect, its value is much reduced.... Such a practice leaves the way open to improper conduct in obtaining subsequently recorded admissions and dramatically weakens the protection to both suspect and investigating officers that a fully recorded interview carries. It may be that what purports to be a fully recorded interview was in fact preceded, or is alleged to have been preceded, by circumstances of inducement or compulsion to make the recorded admissions."

11. It is to be noted at the same time that s 570D does not purport to impinge upon the court's power at common law to exclude on grounds of unfairness or public policy (or to refuse to admit because of involuntariness) evidence of admissions which are on videotape if circumstances warrant it doing so[15] and, as recognised in Kelly[16], the failure to record on video the whole of a suspect's evidence may in particular circumstances result in the exercise of the discretion to exclude the evidence on the ground of unfairness[17].

The position prior to s 570D

12. In Kelly the court held[18]:

"Whilst not prepared to find that public policy dictates that in every case where video facilities are available the whole of a suspect's evidence should be video recorded, we are of the view that its non-use in particular circumstances can give rise to real questions of unfairness. When that question arises, it is necessary for the trial Judge, in determining whether to exercise the discretion, to consider whether the non-use of the facilities, in the found circumstances, was likely to have produced an untrue confession. If it were, that would be a strong reason to reject the evidence...."[19]

13. In Sell[20] Malcolm CJ, in expressing the view of all the members of the court, considered[21] that it was clearly contemplated by the High Court in McKinney v The Queen[22] "that, as a matter of practice, where video recording facilities were available, the whole of the interview with a suspect would be recorded on video", and opined that such a practice is highly desirable. In relation to the above-quoted passage from Kelly[23], His Honour stated[24]:

"The effect of this passage is that public policy does not necessitate the adoption of a rule of practice or of law that requires that in every case where video facilities are available, the whole of a suspect's interview should be recorded on video. In my view, this does not detract from the view that, as a matter of practice, it is highly desirable that the police themselves adopt a rule to that effect, so as to avoid the necessity for trial Judges to determine whether to exercise the discretion to exclude confessional evidence on the ground of unfairness."

Ipp J in Sell[25] agreed that it was highly desirable that the police adopt a rule of practice that in every case where video facilities are available the whole of the suspect's interview should be recorded on video. His Honour stated that there was a serious risk that admissions made during video recorded interviews that are held after unrecorded police interrogations would be regarded as unfair.

14. In Mallard Malcolm CJ, in whose judgment the other members of the Court concurred, stated[26] in relation to what had been held in Sell:

"This Court has now clearly stated what the desirable practice should be. It should be clearly understood ... that the practice described in Sell as desirable will be given effect by the courts in respect of interviews conducted since the date of that decision on 22 June 1995."

Malcolm CJ also stated[27]:

"I am of the opinion ... that police officers should in the future take note that where video facilities are available and use is not made of them, the evidence obtained in an oral interview is likely to be held inadmissible in the exercise of the Court's discretion."

The effect of s 570D on the ruling in Mallard

15. A question arises whether the Mallard-ruling, if it may be termed that, survives the introduction of Part 60A of the Criminal Code or whether it was intended to serve only a temporary function until Part 60A came into operation. The question would have importance if the ruling has a wider scope than s 570D. In this regard, as discussed above, it may be that s 570D does not require the entirety of a police interview to be recorded on videotape, but only the particular admissions which the Crown wishes to have admitted into evidence, whereas the Mallard-ruling requires the entire police interview to be so recorded[28]. It is also noted that the Mallard-ruling does not appear to be restricted to "serious offences" as defined in s 570D.
16. If the Mallard-ruling were no more than a restatement of the common law discretion to exclude evidence on the ground of unfairness, there would be little doubt that it is unaffected by s 570D. Certain dicta might suggest that this is the extent of the ruling. Thus in Walker v The Queen[29] Murray J, Pidgeon J and Malcolm CJ concurring, after citing the above-quoted remarks of Malcolm CJ in Mallard[30], stated[31]:

"Of course, that will remain a matter for the exercise of discretion and for the decision of individual trial judges, having regard to the unfairness discretion and the appropriate grounds for its exercise."

However, it is submitted that the Mallard-ruling, while requiring the exercise of a discretion, was intended to extend or enlarge upon the position at common law. Although the ruling is not expressed in terms which indicate that the exclusion of the evidence is the inevitable consequence of not having the entirety of an interview video-recorded, the judgments in both Sell and Mallard suggest that it was intended to reflect a greater readiness by a court to exclude admissions where video-recording has not occurred, and to avoid the wasted time and cost involved in investigating whether the failure to videotape an interview or admission resulted in unfairness in the circumstances of a particular case. It is observed that there would appear to have been no point to Malcolm CJ's restricting the effect of the Mallard-ruling to interviews conducted after 22 June 1995 (the date of the decision in Sell) if the ruling was intended merely to restate the common law position.

17. It is tentatively suggested that the Mallard-ruling does survive the introduction of Part 60A. Assuming this to be the case, it remains to be seen how it will be applied in practice and how it will co-exist with s 570D. It may be that unfairness, if alleged by the defence, will be presumed to exist in the absence of the video-recording of a police interview in its entirety, even if the particular admissions sought to be relied on by the Crown are recorded on video. This would lead to the exclusion of evidence of the alleged admissions, unless it appears from all the circumstances or the Crown establishes that no unfairness resulted or the Crown establishes that there is a justifiable excuse for the absence of a video-recording. This would entail a departure from the common law position where an accused has the onus of satisfying a court that a voluntary confession should be excluded for reasons of unfairness[32].

Notes:

[1] Unreported; CCA SCt of WA; Library No 960505; 11 September 1996.

[2] At 21.

[3] At 22.

[4] Accepting that Ormiston J was correct in Raso (1993) 68 Crim R 495 (CCA, Vic) at 527 that for someone to be a "suspect" there has to be a factual foundation for the suspicion that he has committed an offence, s 570D may be thought to contain unnecessary repetition.

[5] In Raso at 505.

[6] See eg. Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267.

[7] See Maxwell supra; Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515.

[8] Unreported; SCt of WA; Library No 970014; 21 January 1997.

[9] Although the section, by requiring evidence of any admission, as opposed to evidence merely of corroboration of an admission, to be on videotape, would appear generally not to permit the Crown to prove an admission by a suspect to the police that was not on videotape by tendering a videotape containing subsequent corroboration of the earlier admission.

[10] See the Western Australian Legislative Assembly Debates (Hansard), 1 December 1992, p. 7669.

[11] See ss 570B and 570C. The definition of "videotape" may also apply to s.570F (relating to directions given by a Court in relation to videotapes) and s 570H (which provides for the playing of videotapes for teaching purposes).

[12] Cf Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 and Hetherington v R [1994] HCA 19; (1994) 120 ALR 591 which held that the differently-worded s 464H of the Crimes Act (Vic) makes admissibility of a particular admission depend on whether the relevant questioning during which the admissions were made was recorded throughout its duration.

[13] At 22.

[14] Unreported; CCA SCt of WA; Library No 940590; 27 October 1994 at 17-18.

[15] See eg Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1.

[16] At 19.

[17] See also R v Woodward, unreported; SCt of WA; Library No 950117; 22 March 1995 per Steytler J at 8-10.

[18] At 19.

[19] To this should be added, it is submitted, the observation of Brennan J, as he then was, in Duke v R [1989] HCA 1; (1989) 180 CLR 508 at 513 that unfairness may arise not only because the confession may be unreliable, but also because no confession might have been made if the investigation had been properly conducted.

[20] Unreported; CCA SCt of WA; Library No 950319; 22 June 1995.

[21] At 17.

[22] [1991] HCA 6; (1990-91) 171 CLR 468.

[23] At 19.

[24] At 18-19.

[25] At 2.

[26] At 28.

[27] At 30-31.

[28] While the passage from Mallard at 30-31 quoted above taken in isolation might suggest that the ruling has a narrower scope, it is submitted that the form of the defence challenge in Mallard made it unnecessary to state the effect of the ruling in wider terms at that point in the judgment. It appears clear from what was held in Sell - which did involve a challenge to the admissibility of a video-recording where part of the interview had been conducted orally - and from Malcolm CJ's endorsement thereof in Mallard at 28, that the ruling was intended to require that the whole of a suspect's interview be recorded on video.

[29] Unreported; CCA SCt of WA; Library No 960619;31 October 1996.

[30] At 28 and 30-1.

[31] At 17.

[32] See eg R v Lee [1950] HCA 25; (1950) 82 CLR 133 esp at 152-3.