R v Seymour[2012] QSC 14

SUPREME COURT OF QUEENSLAND

1. Mr Seymour is charged with the murder of Mr Bathgate (the deceased) on about 20 August 2009, and with improperly interfering with the deceased’s body.  Two other persons, including Mr Terry, are charged with the same offences.  It is intended that all three defendants be tried at the same time.  Mr Seymour has applied under s 590AA of the Criminal Code (Queensland) for orders excluding evidence of statements made by him (Seymour statements) from the trial; excluding evidence of statements made by Mr Terry (Terry statements) from the trial; and in the alternative to the latter, a trial of Mr Seymour separate from the trial of Mr Terry.

Background

2. Mr Bathgate conducted a nursery at Mt Warren, Windaroo. At about 6 am on 20 August 2009, employees at the nursery saw Mr Bathgate’s black Toyota Hilux driven out of the nursery in an erratic manner. They could not tell whether there was one person or more than one person in the vehicle, nor could they identify anyone in the vehicle.

3. Shortly afterwards, the employees found signs of a violent struggle, including blood, in or near a caravan in which the deceased had lived; a shovel which was out of place; a bloodied knife and gloves; and various other items. They then telephoned the police.

4. The Toyota was found the following day in a cane field at Eagleby.  It had been set alight.  The body of the deceased was in the tray of the Toyota, extensively burnt. 

5. Doctor Olive, who conducted a post mortem examination of the body of the deceased, concluded that the deceased died as a result of stab wounds to the chest. He stated that there was no evidence of any incision or penetrating injury to the neck structures.

6. The blood on the handle of the knife alleged to be the weapon which killed the deceased matched the DNA profile for Mr Seymour.

7. There is evidence from Mr Wayne Charters, an associate of Mr Terry. He stated that he had been recruited to assist in the burning of the Toyota on 21 August 2009.  He was initially charged with the murder, but that charge was withdrawn.  Mr Charters has given evidence of statements made by Mr Seymour and Mr Terry, implicating them in the murder, but it is unnecessary to refer to these statements in detail.

8. Mr Lorey is a prison informant. He, too, has given evidence that Mr Seymour has made a statement to him implicating Mr Seymour in the murder. Again, it is not necessary for present purposes to consider this evidence in detail.

9. On 28 August 2009, Detective Sergeant Pannowitz saw Mr Seymour at the Beenleigh Railway Station. Detective Sergeant Pannowitz took possession of a bag which Mr Seymour had been carrying. Shortly afterwards, Detective Senior Constable Lawrie informed Mr Seymour that he was under arrest for the murder of Mr Bathgate. Mr Seymour was taken to the Beenleigh Police Station, where he was left for a time in a holding room at the station.

10. At about 12:17pm, in response to a knock on the door of the holding room, Detective Sergeant Pannowitz went into the room. His statement^[1] records the following conversation:

‘Seymour said, “What's going to happen?”

I said, “At the moment we are a little bit all over the place making some enquiries. It is our intention to interview you about the murder of Brian Bathgate at Mount Warren Park on the 20^th of August 2009”.

Seymour said, “I didn't do it”.

I said, “Well, we believe we have sufficient evidence to place you at the murder scene and also involved in the disposal of the deceased and his utility”.

Seymour said, “What do I do? What's best for me? I want to tell you what happened”.

I said, “That's not for me to say Brett. Without hearing what you may have to say it's impossible for me to say what may or may not happen”.

Seymour said, “But if I tell you what happened, you would have to investigate it?  Which would verify I'm telling the truth”.

I said, “I can guarantee we would investigate any information you provide”.’

11. At that time Detective Senior Constable Lawrie entered the room. The statement records the conversation as continuing:

‘I then said to Lawrie, “Brett says he wants to tell us what he knows but is not sure. He says he wasn't at the murder scene”.

Lawrie said, “What's your concerns?”

Seymour said, “Well. Going home. Bail I guess”.

Lawrie said, “Brett I'm not sure what Panno has told you but at this time you have been arrested for the murder of Brian and will be charged at the Watchhouse. Obviously if that happens there will be no bail”.

Seymour said, “As a man I can swear to you that I wasn't at Mount Warren Park and I didn't kill him. Look at my history. I have no violence. All I have done is lend my car. So if you're saying something of mine is at the scene it would have been in my car. Even my phone was in my car until I picked it up on the weekend. Unless you're trying to bullshit me and say my DNA is there. Yes my leg is cut but that was getting out of the river. Yes, okay I admit I was wanted on a warrant and I jumped in the river”.

I said, “Brett, we haven't said anything about swimming in the river”.

Seymour said, “We'll I did. I got dropped off at Adam Terry's house that morning and he drove me down a road where there was a river and a little shed with a fire smouldering. He was agitated and said we were going to meet some people. There was no-one there so he tells me to wait there while he went for a drive to look for them. Then about half an hour later he comes back down and I think everything is sweet but then I see a cop car behind him. So I was wanted on a warrant and Nick Crawford told me that if the police find me they will lock me up, so I heard the sound of a road over the river so I just swan across. So that's how I hurt my leg. So yeah that was me and I ended up catching a cab after knocking on a house”.

I said, “Who is Nick Crawford?”

Seymour said,  “Hydra”.

I said, “Well to answer your first question we are not saying anything about DNA. To be honest any DNA from the blood at the scene is still weeks away”.

Lawrie said, “The balls pretty much in your court”.

Seymour said, “Can I speak to my Solicitor?”

Lawrie said, “Are you still using Jim?”

Seymour said, “Yes”.

Lawrie said, “It's a matter for yourself”.

Seymour said, “I still want to tell you what happened”.

Lawrie said, “Do you want to have a think about it?”

Seymour said, “Yes”.’

12. This conversation includes what I have referred to as the Seymour statements. 

13. At the conclusion of this conversation, according to Detective Sergeant Pannowitz’s statement, Mr Seymour spoke with his legal representatives.

14. The statement of Detective Senior Constable Lawrie records that at about 1:20pm on 28 August 2009, Mr Seymour stated he did not wish to answer questions about the matter, though he agreed to the electronic recording of his refusal to answer questions. That occurred between 1:45pm and 1:50pm on that day. Mr Seymour was then provided with lunch, and certain paper work was attended to. Mr Seymour was also given the opportunity to make a telephone call. Shortly after 3:20 pm he was charged with the murder of the deceased.

15. In cross-examination at the committal, Detective Sergeant Pannowitz gave evidence that, at some time in the course of the afternoon, he made notes in his note book of the conversation which had occurred shortly after 12:17pm that day. He said that he did this “at my first opportunity”. He also said that, later that day, an examination was carried out of Mr Seymour’s person.

16. It is not clear when Detective Sergeant Pannowitz finished work on 28 August. He was rostered to resume work at 8 am the following day. A record of interview records that at 10:20 am, Detective Sergeant Pannowitz spoke to Mr Seymour about the notes of the conversation of the previous day. Detective Sergeant Pannowitz told Mr Seymour that he had made the notes, and that he intended to offer Mr Seymour the opportunity for him to read them, “to see if you agree that they’re true and correct”. He told Mr Seymour, “…it’s your opportunity to um, either agree or disagree with the conversation which I’ve recorded as happening prior to the interview”. Detective Sergeant Pannowitz then asked Mr Seymour if he was prepared to take part in that process, to which Mr Seymour replied, “Ah, no. I’ll just wait for my lawyer.” Detective Sergeant Pannowitz then said that he would leave a copy of the notes with Mr Seymour’s property, so that Mr Seymour could discuss with his lawyer the course proposed by Detective Sergeant Pannowitz. The evidence led at the committal does not suggest that Detective Sergeant Pannowitz did anything further about reading the notes to Mr Seymour.

17. Plain Clothes Senior Constable Bowman was another police officer involved in the investigation. At 12:52pm on 9 September 2009, he located Mr Terry at the Royal Hotel, Beenleigh. His statement records that Mr Terry was cautioned in accordance with the Police Powers and Responsibilities Act 2000 (Qld) (PPRA), and invited to come to the Logan Central Police Station for interviewing in relation to the murder of Mr Bathgate.  He refused to do so, and was then arrested. 

18. Mr Terry was then taken to the Logan Central Police Station, and placed in a holding room. Detective Sergeant Rogers and Plain Clothes Senior Constable Bowman were both present. Plain Clothes Senior Constable Bowman’s statement continues as follows^[2] (the conversation includes what I have referred to as the Terry statements): 

“Rogers said: Mate just grab a seat we will come and talk to you soon.

Terry said: I didn't kill him

Rogers said:  What's that?

Terry said: I only went there with Brett, all I knew was that we were going to get money. Then he came out of the caravan swinging something.

Rogers said: What?

Terry said: I don't know

Rogers said: Ok

Terry said: Then Brett hit him with this long shovel thing and he ran to the pond. Brett chased him and that's when it happened

Rogers said: What happened?

Terry said: Brett sliced his throat and then it was like come and help me, come and help me I was scared.

Rogers said: Yeah

Terry said: So we took him back to the caravan and we were going to leave him there but Brett changed his mind and said to chuck him in the truck

Rogers said: Yeah

Terry said: So then Brett drove the truck and told me to get in.  I hopped in and we went to Eagleby

Rogers said: Where the car was burnt?

Terry said: Yeah. Then I left and went back to my house to change my clothes cause they had blood on them

Rogers said: Yeah

Terry said: Then I caught a cab back to the car

Rogers said: Which car?

Terry said: Brett's car. It's a white 2002 or 2003 Holden Commodore.

Rogers said: Where was that?

Terry said: We parked it on the Boulevarde

Rogers said: Ok

Terry said: Then I drove back to Eagleby and that's when I spoke to that copper. And that when Brett pissed off on me

Rogers said: What happened to your clothes?

Terry said: I burnt them at the back of a friends house in the bush

Rogers said: What about the truck?

Terry said: The next day I saw Brett he was waiting at my house. And then he said to Wayne to buy fuel and gave him the money. Then we went there and burnt it.

Rogers said: Ok. Mate we have to do this the right way on tape. We will go and organise some tapes and come back and see you.”

19. Plain Clothes Senior Constable Bowman then left to obtain tapes to record an interview with Mr Terry, but on his return, Mr Terry stated he did not wish to be interviewed.

20. At some unidentified point in the course of the afternoon, Plain Clothes Senior Constable Bowman made notes of the conversation. A further conversation between Senior Constable Bowman, Sergeant Rogers, and Mr Terry took place commencing at about 3.50 pm. It was recorded on a compact disc. Mr Terry was advised of his right to remain silent, and his right to speak to a friend or relative, or to a lawyer. Mr Terry, when asked, stated that he did not wish to answer questions “… due to legal advice. Ah I haven’t been able to speak to my lawyer.”

21. Senior Constable Bowman then said, “…I just want to cover what has occurred today with us … .” Mr Terry was then asked whether, at about 12:52pm, the police had attended at the Royal Hotel at Beenleigh, to which he agreed; and whether he had been given the same warnings as he had been given at the commencement of the interview then being conducted, to which Mr Terry also agreed. He was then asked whether he had been taken to the holding room at the police station, to which he agreed. He was then asked whether he agreed that the police officers had had a conversation with him, to which he said he would rather not answer questions until his lawyer was present. Senior Constable Bowman then continued, “That’s fine you, you don’t have to comment on, on any of these things but ah because I’ve made notes in my note book … I have a few things that I wish to put to you … regarding that conversation.” He continued, “…you don’t have to comment, okay, but this is your opportunity to make comment on ah, on any of those um, that conversation if you wish to do so, okay”. Mr Terry responded, “Okay”.

22. Senior Constable Bowman then made a statement to Mr Terry which appears to be a reading of the notes he had made of the earlier conversation. Mr Terry was then asked if he wished to make any comments on the notes that had just been read back to him, to which he replied, “Um no, no further anything until I get my lawyer”.

23. Further questions were asked of Mr Terry, but his responses were consistent with the position he had taken earlier. Mr Terry was then asked to sign the notes, but was not prepared to do so. He was not given a copy of the notes until the following morning.

24. It is proposed to lead evidence at the trial of the conversation between Detective Sergeant Pannowitz, Detective Senior Constable Lawrie, and Mr Seymour on 28 August 2009; and of the conversation between Detective Sergeant Rogers, Senior Constable Bowman and Mr Terry of 9 September 2009.

Proceedings andsummary of contentions

25. Mr Seymour’s application was listed for hearing at the same time as other applications, including an application by Mr Terry. Mr Walsh of Counsel appeared for Mr Terry. When appearances were announced, Mr Walsh stated that Mr Terry was no longer pursuing his own application, but would oppose Mr Seymour’s application in relation to the Terry conversations. The applications were stood down, and when they resumed, Mr Walsh advised that his client no longer wished to participate. Mr Walsh sought, and was granted, leave to withdraw. However, Mr Terry remained in Court while argument proceeded in relation to Mr Seymour’s application, until the luncheon adjournment. When the hearing resumed, Mr Terry expressed a preference to return to prison, and was permitted to do so. The hearing of Mr Seymour’s application then continued.

26. After the application had been heard, a request was received from Mr Terry’s legal representative that judgment not be handed down until he had made an application. Ultimately, Mr Seymour’s application was relisted on 9 December 2012, and Mr Walsh again appeared for Mr Terry. It was then confirmed by Mr Walsh that Mr Terry did not intend to make any application in relation to the orders sought by Mr Seymour.

27. In the course of the application, Mr Edwards of Counsel, who appeared for Mr Seymour, submitted that the Seymour statements were inadmissible; or alternatively should be excluded in the exercise of the Court’s discretion.  He submitted that the Seymour statements were inadmissible by virtue of s 436(3) of the PPRA; and because they were not voluntarily made, with the consequence that their reception was precluded by s 10 of the Criminal Law Amendment Act 1894 (Qld) (CLAA).  He also said that failures to comply with the provisions of the PPRA and the Police Powers and Responsibilities Regulation 2000 (Qld) (PPRR) had the consequence that the Seymour statements should be excluded on a discretionary basis.

28. Mr Cash of Counsel, who appeared for the prosecution, submitted that the provisions of the PPRA and the PPRR relied upon by Mr Edwards did not apply, with the consequence that the Seymour statements were admissible evidence, and the grounds relied upon for the exercise of the discretion to exclude them had not been made out.  He also submitted that the admissions were voluntarily made.

29. Mr Edwards also submitted that the Terry statements should be excluded from the trial. He submitted that his client had standing to submit that the Terry statements should not be received in evidence at the trial because they were inadmissible. He submitted that the Terry statements were inadmissible, by virtue of s 436(3) of the PPRA.  Mr Edwards’ written submissions refer to unfairness said to arise by virtue of a failure by the police officers to comply with provisions of the PPRA and the PPRR in relation to the Terry statements, though orally he appeared to accept that his client had no standing to seek the discretionary exclusion of the Terry statements on the basis of unfairness to Mr Terry.  He did, however, submit that the Terry statements should be excluded, because they are of little probative value against Mr Terry, and were highly prejudicial to Mr Seymour.  He made an alternative submission that if the evidence were not excluded, then there should be separate trials for Mr Seymour and Mr Terry.

30. Mr Cash submitted that Mr Seymour did not have standing to challenge the admissibility of the Terry statements. However he submitted that, once the matter had been raised, if the view was taken that the Terry statements were inadmissible, they should be excluded from evidence, the Court being subject to an overarching obligation to ensure a fair trial and one that proceeds according to law. He submitted that evidence of the Terry statements was not precluded by s 436(3) of the PPRA.  He submitted that there had been substantial compliance with the PPRA and the PPRR.  He also submitted that this was not a case where the evidence could be excluded at the trial, on the basis of its prejudicial effect on Mr Seymour; and that its reception did not justify separate trials.  With respect to Mr Edwards’ submission that at least part of the Terry statements should be excluded on a discretionary basis, that course was not open, because Mr Terry was entitled to have the whole of the evidence placed before the court.

31. Mr Edwards also submitted that s 439 could not be relied upon to authorise the reception of the Seymour statements and the Terry statements.

32. It will be apparent that it is necessary to consider in some detail the relevant provisions of the PPRA and the PPRR.

Provisions of PPRA and the PPRR

33. The following provisions of the PPRA^[3] are of present importance:

“436 Recording of questioning etc.

(1) This section applies to the questioning of a relevant person.

(2) The questioning must, if practicable, be electronically recorded.

Examples for subsection (2)—

1 It may be impracticable to electronically record a confession or admission of a murderer who telephones police about the murder and immediately confesses to it when a police officer arrives at the scene of the murder.

2 It may be impracticable to electronically record a confession or admission of someone who has committed an armed hold-up, is apprehended after pursuit, and makes a confession or admission immediately after being apprehended.

3 Electronically recording a confession or admission may be impracticable because the confession or admission is made to a police officer when it is not reasonably practicable to use recording facilities.

(3) If the person makes a confession or admission to a police officer during the questioning, the confession or admission is admissible in evidence against the person in a proceeding only if it is recorded as required by subsection (4) or section 437.

(4) If the confession or admission is electronically recorded, the confession or admission must be part of a recording of the questioning of the person and anything said by the person during questioning of the person.

437 Requirements for written record of confession or

admission

(1) This section applies if a record of a confession or admission is written.

(2) The way the written record of the confession or admission is made must comply with subsections (3) to (7).

(3) While questioning the relevant person, or as soon as reasonably practicable afterwards, a police officer must make a written record in English of the things said by or to the person during questioning, whether or not through an interpreter.

(4) As soon as practicable after making the record—

(a) it must be read to the person in English and, if the person used another language during questioning, the language the person used; and

(b) the person must be given a copy of the record.

(5) Before reading the record to the person, an explanation, complying with the responsibilities code, must be given to the person of the procedure to be followed to comply with this section.

(6) The person must be given the opportunity, during and after the reading, to draw attention to any error in or omission from the record he or she claims were made in the written record.

(7) An electronic recording must be made of the reading mentioned in subsection (4) and everything said by or to the person during the reading, and anything else done to comply with this section.

…

439 Admissibility of records of questioning etc.

(1) Despite sections 436 and 437, the court may admit a record of questioning or a record of a confession or admission (the record) in evidence even though the court considers this division has not been complied with or there is not enough evidence of compliance.

(2) However, the court may admit the record only if, having regard to the nature of and the reasons for the non-compliance and any other relevant matters, the court is satisfied, in the special circumstances of the case, admission of the evidence would be in the interests of justice.”

34. Schedule 10 of the PPRR^[4](Responsibilities Code) includes the following:

“35 Right to remain silent not affected

(1) This section applies if a person, the person’s lawyer, or someone whose presence is required during questioning of a person indicates to the police officer questioning or intending to question the person—

(a) if questioning has not started—the person does not want to answer questions; or

(b) if questioning has started—the person does not want to answer any further questions.

(2) The police officer must clarify the person’s intention to exercise his or her right to silence by asking the person—

(a) whether the person does not want to answer any questions generally or only questions about the offencefor which the person is being questioned; and

(b) if any further question was asked relating to the offence or another offence, whether the person would notanswer the question.

(3) If the person confirms that he or she does not want to answer any questions, the police officer must not question or continue to question the person.

(4) However, if the person later indicates he or she is prepared to answer questions, a police officer must, before questioning or continuing to question the person, ask the person—

(a) why he or she has decided to answer questions; and

(b) if a police officer or someone else in authority has told the person to answer questions.

…

37 Cautioning relevant persons about the right to silence

(1) A police officer must caution a relevant person about the person’s right to silence in a way substantially complying with the following—

‘Before I ask you any questions I must tell you that you have the right to remain silent.

This means you do not have to say anything, answer any question or make any statement unless you wish to do so.

However, if you do say something or make a statement, it may later be used as evidence.

Do you understand?’.

(2) If the police officer reasonably suspects the relevant person does not understand the caution, the police officer may ask the person to explain the meaning of the caution in his or her own words.

(3) If necessary, the police officer must further explain the caution.

(4) If questioning is suspended or delayed, the police officer must ensure the relevant person is aware he or she still has the right to remain silent and, if necessary, again caution the person when questioning resumes.

(5) If a police officer cautions a relevant person in the absence of someone else who is to be present during the questioning, the caution must be repeated in the other person’s presence.

…

42 Procedure for reading back a written record

(1) This section applies if a police officer makes a written record of things said by or to a relevant person during questioning because it is not reasonably practicable to electronically record the things said.

(2) Before reading to the relevant person the written record of the things said, the police officer questioning the person must explain the procedure in a way substantially complying with the following—

‘Some of the questions I have asked you and your responses have not been electronically recorded. I have made a written record of the unrecorded conversation. This is your copy of the record. I will now read the written record aloud.

If you consider there is an error in the record or there is something left out of the record, you should say so after I read that part of the record aloud.

You will then be asked to say what the record should read.

Do you understand this is your opportunity to disagree with anything in the written record?

Do you understand this procedure?’.

(3) If the police officer reasonably suspects the relevant person does not understand the explanation, the police officer may ask the person to explain the procedure in his or her own words.

(4) If necessary, the police officer must further explain the procedure.”

Application to exclude the Terry statements on discretionary grounds

35. In R v Belford & Bound (No 2 )^[5] Applegarth J dealt with an application by one of two accused for the exclusion of evidence sought to be adduced by the co-accused, through cross-examination of a prosecution witness.  That evidence was admissible in the trial of the co-accused, but prejudicial to the accused applying for its exclusion.  After a consideration of the authorities, his Honour held that the discretion existed;^[6]  and might be exercised in a case “in which the probative value of the evidence is so slight, or where the material has a limited relevance to the case of the accused person who wishes to lead it, and leading it would prejudice the trial and the interests of the co-accused to such an extent that the prejudice outweighs the slight probative value of the evidence.”^[7]

36. The present application was argued on the basis that the discretion extends not only to the exclusion of evidence advanced by one accused, prejudicial to another accused; but also to evidence put forward on behalf of the prosecution, and admissible against one accused, but inadmissible against and prejudicial to another accused. Mr Cash did not submit that the discretion did not extend so far. In the circumstances I am prepared to proceed on the basis that Belford was correctly decided;^[8] and that the discretion extends to the present case.

37. The proposition formulated by Applegarth J reflects the more general principle relied upon as a basis for the discretionary exclusion of evidence, sometimes expressed by the statement that the prejudicial effect of the evidence outweighs its probative value. In R v Hasler; ex parte Attorney-General^[9] Connolly J said in respect of this principle,^[10]“The discretion falls to be exercised and the prejudicial effect on the accused becomes relevant only if the evidence tendered is of small probative value.”  To somewhat similar effect, in the same case, Thomas J said,^[11] “Exclusion should occur only when the evidence in question is of relatively slight probative value and the prejudicial effect of its admission would be substantial”.  The third member of the Court in that case, de Jersey J (as his Honour then was) considered it to be a sufficient basis to refuse to exercise the discretion that the evidence could not be reasonably regarded as being “of only relatively slight probative value”.^[12]  Applegarth J’s statement of the circumstances in which the discretion might be exercised is consistent with what was said in Hasler.  It therefore seems to me to be necessary to consider the probative value of the Terry statements in the case against Mr Terry.

38. The Terry statements establish the presence of Mr Terry on the occasion when Mr Bathgate was killed. They provide evidence of the purpose for which Mr Seymour and Mr Terry were at the nursery, a purpose which, in the context of all of the evidence, a jury might be entitled to conclude was illegal. The admissions also demonstrate that, on the version given by Mr Terry, Mr Terry provided assistance to Mr Seymour immediately after Mr Bathgate was killed, and that he subsequently went with Mr Seymour to the place where Mr Bathgate’s vehicle (with Mr Bathgate’s corpse on the tray) was burnt. They also contain a statement that Mr Terry burnt the clothes he had been wearing, a fact which the jury might consider as intended to conceal Mr Terry’s involvement in these events.

39. In my view, this evidence cannot be regarded as being of slight probative value in relation to the charges against Mr Terry.

40. For Mr Seymour it was submitted that the version of events reflected by the Terry statements was likely not to be controversial in the trial against Mr Terry. It seems to me that that submission involves speculation about the way in which Mr Terry’s defence will be conducted. Even if that speculation proves ultimately to be correct, it does not alter the fact that the probative value of the Terry statements in the case against Mr Terry is more than slight.

41. Accordingly, if the Terry statements were otherwise admissible at the trial, I would not be prepared to exercise the discretion to exclude them from evidence.

Are the Terry statements inadmissible under the PPRA?

42. It was conceded by the prosecution that the Terry statements were made in the course of questioning, so that s 436 of the PPRA would apply.  Section 436(3) of the PPRA provides that an admission made by a person is admissible in evidence against that person “only if it is recorded as required by sub-section (4) or section 437”.  The Terry statements were not recorded electronically, as part of a recording of the questioning of Mr Terry and things said by him during that questioning.  Accordingly, the condition relating to recording under s 436(4) is not satisfied.

43. The condition stated in s 436(3) that an admission be “recorded as required by … section 437”, it seems to me (by reference to s 437(2), is only satisfied if the admission is recorded in writing, and the other requirements found in s 437 are satisfied.

44. At the hearing, reference was made to the requirement found in s 437(3) that the written record be made while the person is being questioned, or as soon as reasonably practicable after the questioning. The evidence indicates that after the conversation with Mr Terry, which took place somewhere around 1 pm, Mr Terry stated that he did not wish to be interviewed on tape. The police officers then conferred to discuss what had happened, and to make notes of the conversation with Mr Terry. In the circumstances, given the way the events unfolded on 9 September 2009, it seems to me that the notes were made as soon as was reasonably practicable after the conversation, and that accordingly the requirement found in s 437(3) was satisfied.

45. However, other requirements of s 437 of the PPRA were not satisfied.  No explanation was given for not providing a copy of the notes to Mr Terry when they were read to him on the afternoon of 9 September, or until the following morning.  If it was not reasonably practicable to do so until then, that was clearly within the knowledge of police officers who gave evidence, but their evidence does not explain the delay.   I am not prepared to find that s 437(4)(b) of the PPRA was complied with.

46. In my view, the explanation given to Mr Terry of the procedure intended to be followed when the notes were read was not a statement which substantially complied with the formula found in s 42 of the Responsibilities Code. The formula makes clear that a person said to have made admissions is being given the opportunity to identify errors in, or omissions from, the recording; and to have recorded, that person’s version of what was said. The explanation given to Mr Terry made no mention of omissions from what was recorded. The invitation to make comments on the conversation, and the later invitation to make comments on the notes, were, in context, open to be understood as an invitation to discuss the matters to which the earlier conversation referred, and not the accuracy of the recording of it. There is, in my view, an appreciable difference between telling someone that he has the opportunity to comment on a conversation, and telling someone that if he disagrees with a record of it, he should then say so. Taken together, these considerations have the effect that there was not substantial compliance with the formula in s 42 of the Responsibilities Code. There was accordingly a failure to comply with s 437(5) of the PPRA.

47. For the prosecution it was submitted that there had been substantial compliance with the requirements of the PPRA.  That submission can be accepted only if s 436(3), in relation to a confession which is not electronically recorded, is satisfied by compliance with some but not all of the requirements of s 437.  The submissions made on behalf of the prosecution did not advance reasons why that might be correct.  Such a view does not sit comfortably with the language of s 436(4) and s 437.  Section 437(2) specifically requires compliance with the provisions found in s 437(3)-(7).  It seems to me that the limitation on the admission of a confession or admission found in s 436(3) takes effect if any of the specific actions required by s 437(3)-(7) are not complied with. 

48. For Mr Seymour, it was submitted that s 436(2) had not been complied with, in that the questioning of Mr Terry had not been electronically recorded, it being practicable to do so. Although it was conceded that the conversation involved questioning on the part of police, so as to make s 436 of the PPRA applicable, it seems to me relevant to note that it was not a formal interview.  It commenced with volunteered statements by Mr Terry.  Some of the responses of Detective Sergeant Rogers may be regarded as encouraging Mr Terry to provide further information, and included some questions.  Nevertheless, it seems to me that the conversation was not one anticipated by the police officers, and the questioning developed spontaneously during the course of it.  In the circumstances, it does not seem to me that it was reasonably practicable to record the conversation electronically.  In any event, s 436(3) does not make compliance with s 436(2) a condition of the admissibility of a confession or admission. 

49. Under s 439, there is a discretion to admit evidence of a confession or admission, notwithstanding a failure to comply with the requirements set out in s 437. In light of the authorities^[13] no attempt was made to defeat the application by reliance on s 439 of the PPRA.

50. It follows, in my view, that the Terry statements are not admissible, by virtue of s 436(3) of the PPRA.

Should the Terry statements be excluded from evidence at the trial?

51. Reference has previously been made to the possible participation of Mr Terry in Mr Seymour’s application. After the hearing, submissions were provided on the question whether, as a matter of law, a defendant in a criminal trial could waive the failure to comply with the requirements of the PPRA and the PPRR. 

52. For the prosecution, it was submitted that a failure to comply with those requirements might be waived, by reference to a number of authorities.^[14]  For the applicant, it was submitted that such a failure was not capable of waiver.  Most of the cases relied upon for the prosecution were cases dealing with the reception of hearsay evidence, which, it was submitted, was fundamentally different to the reception of evidence made inadmissible by statutory requirements expressed in mandatory terms.  Reference was also made to the importance of the rules of evidence in controlling the material placed before a jury in a criminal trial.^[15]  R v Demir^[16] was also referred to, dealing with the rule that a prosecution witness is not to be compelled to disclose the name of an informer.  It was submitted that the cases where it was said that a waiver had occurred, properly characterised, were cases which dealt with the question whether there had been a fair trial, and were not in truth cases of waiver.^[17]

53. In my view, the authorities which have been cited support the view that a party’s right to have inadmissible evidence excluded from a criminal trial is, in general, capable of waiver. Where a statute renders inadmissible evidence which would otherwise be admissible under the general law, the answer to the question whether the breach of the statute is capable of waiver may depend upon the proper construction of the relevant statutory provisions. Sometimes that question might be answered by considering whether the statute confers what might be described as a “personal right”, capable of waiver.^[18]  However, it seems to me that that might not always be so; and in the end, the matter will be determined by the proper construction of the statute.

54. In the present case, s 436 makes evidence of a confession or admission “admissible” only if a specified condition is satisfied. That language does not seem to me to preclude waiver by a defendant of requirements of the provisions of the PPRA and the PPRR, thus enabling the evidence to be placed before a jury.  Nor does there appear to be anything else in the statute which would preclude waiver.

55. However, in my view, the material before me does not establish that waiver has occurred.

56. In Millar v Dickson^[19] Lord Bingham of Cornhill said that the expression “waiver” is generally used “…to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise”.^[20]  In R v Clark, Nettle JA suggested that, in relation to the reception of hearsay evidence, waiver may be constituted by the combined effect of the failure to object, and an address at the end of the case which accepted the potentially probative value of the evidence.^[21]

57. It could not be said that Mr Terry has waived his right to object to the evidence of the conversation of 9 September 2009. Conventionally, the time to take an objection is when the evidence is adduced. There is no obligation to make an application under s 590AA of the Code for the exclusion of such evidence, before the trial commences. The fact that Mr Terry has not made such an application, and his foreshadowed opposition to Mr Seymour’s application, cannot be regarded, in my view as amounting to a waiver of his right to object.

58. It may also be doubted whether waiver by Mr Terry would defeat Mr Seymour’s application. In R v Belford & Bound (No 2), one co-accused successfully sought the exclusion of evidence which the other co-accused wished to adduce.  However, it is unnecessary for me to come to a concluded view about this.

59. I see no reason not to make an order for the exclusion of the Terry statements. I do not consider it necessary, in the circumstances of this case, to refrain from making an order without hearing submissions from Mr Terry. It is clear that Mr Terry was aware of the application made on behalf of Mr Seymour. Had he wished to contend that the evidence of these conversations should not be excluded, notwithstanding a finding that they were inadmissible, he has had an opportunity to do so. No other reason has been identified for not ruling that this evidence should be excluded. It then becomes unnecessary to determine whether there should be separate trials of Mr Terry and Mr Seymour.

Application to exclude Seymour statements under Criminal Law Amendment Act

60. For the purposes of s 10 of the Criminal Law Amendment Act 1894 a confession is “either a direct admission of guilt, or of some fact or facts which may tend to prove the prisoner’s guilt at the trial”: Attorney-General (NSW) v Martin.^[22] However, the section does not apply to an exculpatory statement, for example, one which the prosecution intends to prove to have been falsely made.^[23]  It has not been submitted that the Seymour statements do not come within the scope of s 10.

61. An inducement, whatever be its nature, and however trivial it may seem to the average man to have been, is capable of rendering a confession inadmissible.^[24] 

62. Under the common law rule relating to the admissibility of a confession, it has been said that the confession must not be “… obtained by any direct or implied promises, however slight ….”.^[25]  That statement has been relied upon in determining the admissibility of a confession under s 10.^[26]  When a statement of a person in authority might be considered to hold out an inducement, a court is not, by fine analysis or the resolution of nice questions of construction, to minimise the effect of the words used.^[27]

63. The submissions made on behalf of Mr Seymour focus on the statements by Detective Sergeant Pannowitz, to the effect that, without hearing what Mr Seymour had to say, the detective could not say what might or might not happen; and that any information Mr Seymour provided to the police would be investigated. In my view, these statements included promises of a benefit, in one case implied.

64. Nevertheless, a question remains whether Mr Seymour was in fact induced by these promises to make the admissions found in the Seymour statements.  I am satisfied that was not the case; and that, as was put in the prosecution’s outline of argument, Mr Seymour “volunteered” the information he provided. 

65. Mr Seymour has not given evidence about what in fact motivated him to make the statements he made on 28 August 2009. I have been asked to reach a conclusion on the basis of the prosecution evidence as to the effect of the conversation.

66. It is relevant to note that, having asserted that he did not murder Mr Bathgate, Mr Seymour stated that he wanted to tell Detective Sergeant Pannowitz what happened. It was then that Detective Sergeant Pannowitz made the statements which I consider amount to promises for the purposes of s 10. However, in response to a question from Detective Senior Constable Lawrie, Mr Seymour identified his major concern as being whether he would get bail. At that point, he was reminded that he had been arrested for the murder of Mr Bathgate, and that there would be no bail. It was immediately after that reminder that he made statements about his conduct, apparently relating to events at about the time of the offences.

67. It might be noted that such benefits as were promised to Mr Seymour were relatively slight. One was that Detective Sergeant Pannowitz would express a view about what might happen to Mr Seymour, once the detective had heard what Mr Seymour had to say. The other, involving the investigation of information which was in part inculpatory, may be regarded as of doubtful benefit. They do not provide a likely explanation for the making of an incriminating statement. As has been mentioned, Mr Seymour identified his primary concern as being whether he might get bail.

68. I also note that such statements as might be regarded as inculpatory (and accordingly which might be excluded under s 10) were made when Mr Seymour was giving an account intended to be exculpatory. Their relationship to the exculpatory statements, rather than any inducement from Detective Sergeant Pannowitz, seems likely to account for the making of these statements.

69. On balance, it seems to me that the statements made by Mr Seymour were not induced by any promise made by Detective Sergeant Pannowitz. Accordingly, I would not exclude them from evidence under s 10 of the Criminal Law Amendment Act.

Other grounds for exclusion of the Seymour statements

70. For Mr Seymour it is submitted that there have been a number of breaches of the provisions of the PPRA and PPRR.  One is that the conversation was not electronically recorded.  Another is said to be that Mr Seymour was not given a proper opportunity to comment on the written notes of the conversation.  It was also submitted that there had been a failure to make the notes as soon as was reasonably practicable after the conversation, and to read them back as soon as practicable thereafter, in breach of s 437 (3) and (4) of the PPRA.  It was further submitted that there was a failure to comply with s 35(4) of the Responsibilities Code, because, Mr Seymour having previously chosen not to speak, was not asked why he now wished to speak, and whether a police officer had influenced him.  It was also submitted that there was a breach of s 37(4), because Mr Seymour had not been reminded of his right to silence “when the questioning recommenced”.

71. As has been mentioned, s 436 of the PPRA applies to “the questioning” of a person in the company of police for the purpose of that questioning.  It is doubtful that the conversation with Mr Seymour took place in the course of questioning, as that term would ordinarily be understood.  However the term is likely to have the same meaning in s 436 and s 437, there being an interrelationship between the two sections.  The examples given in s 436 make clear that the term is not limited to an occasion when a formal interrogation is taking place; but extends at least to occasions when a statement is made to a police officer acting as such in the investigation of the offence.  An example may extend the meaning of a provision in an Act.^[28]  Accordingly, I have come to the view that the Seymour statements were made in the course of questioning, and their admissibility depends upon the provisions of ss 436 and 437 of the PPRA. 

72. So far as the notes are concerned, it seems to me that the most likely time when they were made was in the period when some paperwork was attended to at some time after 1:50pm on 28 August 2009. The statement by Detective Sergeant Pannowitz that he did this “at my first opportunity” was not the subject of cross-examination. Events occurred at about this time by reason of which that description may well be accurate: enabling Mr Seymour to speak to his legal advisers, electronically recording his refusal to speak further, and providing him with lunch. I am therefore prepared to find that s 437 (3) of the PPRA was complied with.

73. However, there was no evidence to demonstrate that it was not practicable to take steps to comply with s 437(4) of the PPRA until the following morning.  Even then, the notes were not read back to Mr Seymour.  Mr Seymour’s refusal to participate in the procedure was not absolute.  It may perhaps be the case that it was not practicable at that time to read the notes to Mr Seymour in view of his expressed wish to have a lawyer present.  However, the evidence does not show that it was not practicable to arrange for that to occur at a later time, and then to comply with the requirements of the subsection.

74. In those circumstances, the Seymour statements are rendered inadmissible by s 436(3) of the PPRA.  It is unnecessary to deal with the other submissions relating to the exclusion of the Seymour statements.

Conclusion

75. I propose to rule that the Seymour statements be excluded from the evidence led at the trial of Mr Seymour.  I also propose to rule that the Terry statements be excluded from the evidence led at his trial.