Admissibility of a record of interview

Imagine the following scenario. Mr Smith is charged with aggravated burglary. He is interviewed by police and denies involvement in the offence. In the course of the interview, he makes some exculpatory statements that suggest that other police witnesses may have a motive to lie. Is this interview admissible in the trial? Even if it is admissible, is the prosecution obliged to tender it?

At common law, it seems there was a widespread practice that the prosecution would seek to tender a record of interview with the accused, reardless of whether it was inculpatory, exculpatory or mixed. This practice is reflected in R v Familic, Unreported, NSWCCA, 4 November 1994:

The relevant principle is established in the decisions of this Court in Astill (unreported, Court of Criminal Appeal, 17 July 1992) and Reeves (1992) 29 NSWLR 109 at 114–115. See also Keevers (unreported, Court of Criminal Appeal, 26 July 1994). It is that where an accused person replies to a question put by police officers or responds to an invitation to comment on some matter put to him or her, what he or she says is in general admissible in evidence. If what is said amounts to no more than an assertion of the right to silence, it may be admitted but the jury should be immediately directed about the right to silence and that no inference adverse to the accused may be drawn by reason of the exercise of it: Astill (at pp 8–9). Where what is said is clearly an admission then, subject of course to the question of voluntariness and the possible existence in the particular circumstances of discretionary reasons for exclusion, it is admissible. Where it is clearly a denial of guilt, it is admissible and ordinarily should be given in evidence.

The theory is sometimes put that the response of the accused when first confronted with an accused is, subject to the exercise of the right to silence, relevant and admissible. This particular branch of law has developed without any thorough justification for creating such an exception to the hearsay rule.

However, the common law did not speak with one voice on this matter. Courts in England and New Zealand established that exculpatory statements to police when first interviewed were admissible and, as a general rule, the prosecution should lead the material. In contrast, courts in Queensland and Western Australia held that the statements were generally inadmissible, and so there was no obligation on the prosecution to lead a purely exculpatory account. Victoria seems to have generally adopted the English and New Zealand position, though the leading Victorian authority, R v Su & Ors [1997] 1 VR 1 jumps between considering the evidentiary value of mixed statements and purely exculpatory statements in an unhelpful manner, and favourably cites UK authority that a purely exculpatory account is not evidence of the facts asserted at the same time as saying that the prosecution is generally required to tender such a statement.

What then of the position under the Uniform Evidence Law? As an exculpatory statement, we can rule out the admissions exceptions. Turning to the hearsay exceptions, s66 potentially allows the defence to lead the statement, but that requires the accused to give evidence. Section 65 might allow the prosecution to lead the evidence, but only if it meets the various reliability style tests and if the prosecution thinks the exculpatory account is reliable, why is it putting the accused through the trauma of a trial? Finally, s60 would allow the evidence to be admitted if it was relevant some other purpose. What other purpose could that be? In Rymer v R [2005] NSWCCA 310, a decision that really looked like the court struggled to find a way to preserve the existing practice of admitting such evidence, the court held that the other purpose was the accused's credibility which is relevant in assessing the denial of liability inherent in a plea of not guilty. Even if you accept that reasoning (and like Kourakis J remarked in Barry v Police [2009] SASC 295, I find it hard to accept that a plea of not guilty does raise the credibility of the accused as an issue in a trial - Doing so appears to me to subvert the onus and standard of proof), Rymer relies on the paradox from Adam's case that the interaction between s60 and the credibility rule means that hearsay evidence relevant to credibility, but not admissible for that purpose, is relevant for more than one purpose and so is admissible for both the hearsay and credibility purposes. Parliament has now fixed that anomaly and so the reasoning in Rymer is no longer good law. Furthermore, ss108A and 108B of the Evidence Act now strictly limit the admissibility of credibility evidence about non-witnesses. Section 108A is irrelevant, because the pre-condition of admitting a previous representation is absent, while s108B is about limiting credibility a defendant, rather than admitting such evidence.

So where does that leave the position of an exculpatory record of interview under the UEA? It seems that, if the evidence is to be admitted, it would be under the general power to waive the rules of evidence, including the hearsay rule. In that sense, any common law authorities stating that the prosecution has a duty to lead such evidence may still apply, if the effect is to require the prosecution to agree to waive application of the hearsay rule. This solution seems highly unsatisfactory, as it undermines the structure of the UEA by grafting common law exceptions on in the form of compelled waiver of the rules of evidence.

The better solution in my view (though I doubt it would be a popular one), is to do away with the prosecution obligation to lead an exculpatory record of interview. If the prosecution chooses to do lead the record of interview, the interview can be used both for and against the Crown. If the prosecution chooses not to lead the record, then the accused will need to choose whether or not to present his version of the facts by giving evidence. The chief risk I see with this is that it could lead to somewhat curious arguments on appeal where the defence contends that the prosecution was wrong to not tender a record of interview because it contained inculpatory statements and this produced a substantial miscarriage of justice by depriving the jury of the exculpatory statements in that mixed record of interview.

I don't believe that removing the prosecution obligation to tender the record of interview, where no event in the trial raises the question of the fairness of the police investigation, introduces any relevant unfairness into the trial simply because different prosecutors may approach the matter differently. Indeed, prosecution policies could ensure a high level of consistency removing any danger of unfairness that arises due to different treatment. The question is whether a policy of tendering or a policy of non-tendering is the better approach. In my view, the general policy should be of non-tendering purely exculpatory accounts. The prosecution obligation to tender all relevant and admissible evidence to assist the jury to reach the correct verdict should not include an obligation to call evidence of exculpatory out-of-court statements by the accused so as to allow the accused to give his account without being exposed to cross-examination. The opportunity to put a version of facts to the jury should not depend on whether the accused chooses to speak to police at first opportunity, or exercise the right to silence and waits until trial. Neither accused should gain a tactical advantage over the other. As Spigelman CJ once remarked, the requirements of a fair trial "do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance".