R v Fischetti & Sharma [2003] ACTSC 9 (26 February 2003)

Last Updated: 31 March 2003

R v FRANK JOHN FISCHETTI and R v AVINASH BHARDWAJ SHARMA [2003] ACTSC 9 (26 FEBRUARY 2003)

REASONS FOR RULING

EVIDENCE - admissibility of recorded execution of search warrant - admissibility of record of interview - despite caution accused felt compelled to answer police questioning - whether circumstances in which admissions were made were such as to make it unlikely that the truth of the admissions were adversely affected - s 85 Evidence Act 1995 (Cth) - whether having regard to the circumstances including what was said to be oppressive cross-examination in which admissions were made it would be unfair to allow the admission into evidence - s 90 Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth), ss 85, 90

R v Taylor [1999] ACTSC 47

R v Exposito (1998) 105 A Crim R 27

R v Moffatt [200] NSW CCA 174 (unreported, 23 May 2000)

R v Pritchard [1991] 1 VR 84

R v Swaffield [1998] HCA 1; (1997) 192 CLR 159

R v Director of Serious Fraud Officer; Ex parte Smith [1997] UKHL 17; [1993] AC 1

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Nos. SCC 86 of 2002 and SCC 206 of 2001

Judge: Gray J

Supreme Court of the ACT

Date: 26 February 2003

IN THE SUPREME COURT OF THE )

) No. SCC 86 of 2002

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 206 of 2001

THE QUEEN

v

FRANK JOHN FISCHETTI

and

THE QUEEN

v

AVINASH BHARDWAJ SHARMA

REASONS FOR RULING

Judge: Gray J

Date: 26 February 2003

Place: Canberra

THE COURT RULES THAT:

1. The taped conversation at the time of the search warrant and the record of interview be admitted.

1. 1. The accused, Frank Fischetti and Avinash Sharma, have been charged on dates in April 2001 that they made and used a false instrument being a Commonwealth of Australia bank cheque in the amount of $252,500.00, that they made and used a false instrument being a CPS Credit Union funds transfer slip in the sum of $10,000.00 and that they stole two sums of money being $500.00 and $1,000.00. The charges of making and using a transfer slip and the two charges of stealing were said to be representative of the means by which the proceeds of the forged cheque were obtained.

2. A voir dire hearing was held to determine the admissibility of what the accused Sharma said to the police when they searched the premises where he resided with his parents on 23 April 2001. He also challenged the admissibility of what he said to police in a videoed record of interview which took place on 27 April 2001, which interview he attended with Mr Prasad, a solicitor.

The admissibility questions

3. It was put by Mr Adams of counsel, acting on Mr Sharma's behalf, that any admissions made in the course of these two events were not admissible as they were made in the course of official questioning and that s 85 of the Evidence Act 1995 (Cth) provides that where an admission is made in that situation, it is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. Alternatively, I was asked to exercise my discretion to refuse to admit evidence of any admission made on the basis that having regard to the circumstances in which it was made it would be unfair to use that evidence, s 90 Evidence Act 1995 (Cth).

4. Mr Adams specifically did not allege any impropriety on the part of the police officers in the questioning of Mr Sharma or that there was any procedural irregularity in such questioning. At the time, Mr Sharma was under 18 years of age, having been born on 13 June 1983. However, at the time of the search conducted under the search warrant, both Mr Sharma's parents were present and at the time of the video recorded interview with the police, Mr Sharma had a solicitor present.

Mr Sharma's understanding

5. Mr Adams' submissions were based upon the understanding of which Mr Sharma gave evidence. He said that he considered that he was obliged to do what the police asked him to do. When the caution was first administered by the interviewing police officer and Mr Sharma was asked to explain to that officer what the caution meant, his response was, "That I have to do what you say". An interchange then took place between the interviewing officer and Mr Sharma's parents which resulted in Mr Sharma's father saying "what you say can be used in a court of law later" and a further question was then put by the police officer. That question was -

OK. So, you don't have to answer anything, OK, but should you, we can then use it in court, as your Dad explained just then.

The response by Mr Sharma to that question was "Yeah". Notwithstanding, Mr Sharma maintained in evidence before me that he felt that he had no choice in participating in the police questioning of him during the execution of the search warrant. At the conclusion of that search, he was invited to take part in a taped record of interview after he had received legal advice. He said that the fact that his parents kept at him about the proposed interview over the period of time between the exercise of the search warrant and the conduct of that interview; that they told him that it would be in his best interests if he co-operated; that it was a matter of shame and disgrace to them; and that the fact that they obtained a lawyer for him, made him feel that he was obligated to take part in the proposed record of interview.

6. He was supported in this by the evidence of his parents, both of whom said that they regarded the interview with police as compulsory. However, they did engage a lawyer on their son's behalf and I heard evidence from Mr Prasad as to the advice that he gave. He said -

The conference in my office was around for one hour and I advised Mr and Mrs Sharma and Avinash, quite categorically and repeatedly, that he should not participate in this interview, it was his right not to do so, and I was strongly advising against his decision to participate.

Even if the solicitor's advice was not heeded, in all the circumstances, having regard to the clear terms in which it was given, it is difficult to see how, without more, an interview subsequently conducted in those circumstances gives rise to a question as to whether the truth or untruth of an admission made in the course of it might have been adversely effected. At no stage was it put as to why that feeling of compulsion to attend the interview would cause any answers given in the interview to be inaccurate or unreliable.

Section 85 Evidence Act 1995 (Cth)

7. I accept that the structure of s 85 of the Evidence Act 1995 (Cth) does not require any causal relationship to be established between the course of official questioning and its effect on any admission made. Although the provision may call into question events in the course of official questioning, and no doubt misconduct by those interrogating or lack of procedural safeguards could give rise to circumstances of unreliability, the provision is not strictly limited to those matters. In the present case, apart from the form of some of the questions said to be relevant to their fairness, no complaint is made about those aspects. The circumstances in this case are limited to the matters subjective to the interviewee and unknown to those interviewing him. In R v Taylor [1999] ACTSC 47 at [29] Higgins J (as he then was) observed -

However, it is obvious from the terms of s 85(2) that the "circumstances" are not confined to those known to the interrogator.

I take it then that the question in this case of whether those circumstances of the accused's feeling of being compelled to attend the interview can be fairly said to be such as to adversely affect any admissions made.

8. In the present case, it is also not directly suggested that any admissions made would be untruthful. It was suggested by Mr Adams that Mr Sharma might be motivated to "alleviate the position in which he finds himself with his parents and the shame that his father says he has brought upon the family". That circumstance might well explain denials and exculpatory statements. It is difficult to see what effect it might have on those answers that can be said to be admissions or to bear upon the inability to explain admitted matters. Nor is this a case where the prosecution can rely upon false denials as an admission of guilt.

9. I adopt the analysis of s 85 that Wood CJ at CL expounded in the NSW Court of Criminal Appeal decision in R v Exposito (1998) 105 A Crim R 27 at 44 -

The correct analysis is, in my view, as follows: if upon the evidence led on the voir dire (and/or in the trial to that point) a question legitimately arises as to whether the circumstances were such that the truth (or untruth) of the admission might have been adversely affected, then it falls to the Crown to establish upon a balance of probabilities (Evidence Act, s 142) that it was unlikely that this was the case. The inquiry undertaken by the judge is not concerned with the question whether the admission was in fact made, or whether it was true (or untrue); each is for the jury, (s 189(3), Evidence Act).

That passage was referred to by Wood CJ at CL in a later New South Wales Court of Criminal Appeal decision of R v Moffatt [2000] NSWCCA 174 (unreported, 23 May 2000) where he added that -

... similar considerations arise in relation to s 90 which permits a discretionary exclusion of evidence where, having regard to the circumstances in which the admission was made, it would be unfair to the defendant to use it.

10. It may also be noted that as far as the record of interview was concerned, not only was Mr Sharma accompanied by Mr Prasad, the solicitor who had given him the advice that I have referred to, but when the caution was administered early in the course of the record of interview and Mr Sharma was asked to tell in his own words what the caution meant, he said "I don't have to say anything or do anything unless I want to". In addition, there are three later occasions where a caution is administered before the questioning proceeds. I am satisfied that no question legitimately arises as to whether the circumstances were such that the truth, or untruth, of the admission might have been affected.

Section 90 Evidence Act 1995 (Cth)

11. It was said by Mr Adams that an additional aspect was the nature of the questioning by the police officers. He pointed to the persistence of their questioning concerning the accused's financial resources to outlay a significant sum for the purpose of registering business names to enable accounts to be opened in the names of those businesses. He criticised the form of some of the questions and the accuracy of the summations of the police officers when seeking a response and their questions. Overall, he submitted that the questioning carried overtones of oppressive cross-examination. He referred to the decision of the Victorian Court of Criminal Appeal in R v Pritchard [1991] 1 VR 84 at 93 -

Cross-examination as such, though forbidden by the Chief Commissioner's Standing Orders, may often not lead to the exclusion of the answers it produces. But cross-examining questions that carry scornful overtones of disbelief are altogether another matter. It is because of the real possibility of exposure to questions of such a damaging nature that an accused will choose to give unsworn evidence and thus exempt himself from cross-examination. The right to do so will, or may be, rendered nugatory if the jury is allowed to view a reproduction of just such an examination conducted at an earlier date by a skilled police questioner.

12. Whilst it might be open to criticise some of the questions to which I was referred as clumsy, inaptly expressed and occasionally repetitious, I do not regard those particular questions or the questioning as a whole as being the character of impermissible of cross-examination, much less oppressive cross-examination.

13. Mr Adams cited an observation from the judgment of Toohey Gaudron and Gummow JJ in R v Swaffield [1998] HCA 1; (1997) 192 CLR 159 at 195 -

... that the acceded cases also reveal that one aspect of the unfairness discretion is to protect against forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained.

However, he conceded that unless he made good his claim that the questions put amounted, in effect, to oppressive cross-examination, he could not really say that there was a "forensic disadvantage". Indeed, that disadvantage presumably might only eventuate if his client chose not to give evidence and it could be said that his right to silence had been rendered nugatory by the fact that he had already been cross-examined by police. It is doubtful that an accused's election not to give evidence is an aspect of that right. It is not in the disparate group of immunities referred to in R v Director of Serious Fraud Officer; Ex parte Smith [1997] UKHL 17; [1993] AC 1 at 30-31 per Lord Mustill: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 630 but, as I have said, I do not regard the nature of the questioning as giving rise to any such issue. Nor do I consider that the evidence might in some way be misused by the jury to come to an impermissible conclusion.

14. Having regard to all the circumstances in which the admissions were made, I do not consider that it would be unfair to use the evidence.

Issues with particular questions

15. I did raise with the prosecution the questions concerning certain questions and answers at the time of the search warrant, particularly those where Mr Sharma's parents were involved and where his responses were to his parents rather than to the interviewing officer. I also referred to certain questions in the video recorded interview which could have been better expressed or were unnecessarily repetitious including a number that Mr Adams referred to as supporting his case for discretionary exclusion. Discussions between counsel have resolved those issues.

16. I rule that the taped conversation at the time of the search warrant and the record of interview should be admitted.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 5 March 2003

Counsel for the prosecution: Mr A Robertson

Solicitor for the prosecution: Director of Public Prosecutions (ACT)

Counsel for the first accused: Mr C Everson

Solicitor for the first accused: Jennifer Saunders & Co

Counsel for the second accused: Mr N Adams

Solicitor for the second accused: Sheila Foliaki-Singh

Dates of hearing: 24-26 February 2003

Date of ruling: 26 February 2003