Department of Primary Industries v Duong - [2013] SASC 25

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DEPARTMENT OF PRIMARY INDUSTRIES v DUONG
[2013] SASC 25
Judgment of The Honourable Justice Sulan
28 February 2013
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - GENERALLY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - NATURE OF DISCRETION - GENERALLY
Appeal against dismissal of complaint - the defendant found not guilty of an offence under the Fisheries Management Act 2007 (SA) - the Magistrate had, in exercise of her discretion, excluded a record of interview of the defendant - whether the Magistrate erred in doing so. Held: appeal allowed - the party seeking to exclude confessional evidence bears the onus of establishing the groundsfor exclusion - there was insufficient evidence to discharge the onus.
Fisheries Management Act 2007 (SA) s 74(1); Summary Offences Act 1953 (SA) s 79A, s 83A, referred to.
The King v Lee (1950) 82 CLR 133; R v Swaffield (1998) 192 CLR 159, applied.
Foster v The Queen (1993) 113 ALR 1; R v Kageregere [2011] SASC 154, discussed.
Duke v The Queen (1989) 180 CLR 508; R v Murphy (1996) 66 SASR 406; R v Lobban (2000) 77 SASR 24; Cleland v The Queen (1982) 151 CLR 1; Collins v R (1980) 31 ALR 257; Williams v The Queen (1986) 161 CLR 278; R v Herbert [1990] 2 SCR 151; House v The King (1936) 55 CLR 499; R v Hart (1979) Qd R 8; The Queen v Sharp (1983) 33 SASR 366, considered.

DEPARTMENT OF PRIMARY INDUSTRIES v DUONG
[2013] SASC 25
Magistrates Appeal: Criminal

SULAN J: This is an appeal from a decision of a Magistrate to dismiss a complaint.
By information and summons, the defendant and respondent, Dang Duong, was charged with having in his possession or control a commercial quantity of fish of a priority species without being authorised to do so under the Fisheries Management Act 2007 (SA), contrary to s 74(1) of the Act. It was alleged that the defendant had in his possession or control 70 green lip abalone, weighing a total of 8.52 kilograms, with a wholesale value of $1090.56.
The defendant pleaded not guilty. The complainant sought to tender a record of interview between the defendant and a fisheries officer, Ms Renee Tietzel. Objection was taken to the admissibility of the record of interview. The defendant submitted that the Magistrate should exercise her discretion to exclude the evidence on the basis of public policy and/or unfairness. A voir dire was conducted.
Ms Tietzel gave evidence. Two DVD records of the interview were tendered. The defendant did not give evidence.
The Magistrate exercised her discretion and excluded the records of interview.
The matter then proceeded to trial. The Magistrate found the defendant not guilty of the charge.
The appellant appeals against the dismissal of the charge. The sole ground of appeal is that the Magistrate erred in excluding the evidence of admissions made by the defendant. It follows that, if the Magistrate was in error, she has failed to consider evidence probative of the defendant’s guilt of the offence.
Background
Ms Tietzel is a Fisheries Compliance Officer who was stationed at Mount Gambier. She had held that position for a number of years. In November 2010, she, together with other officers of the Department, were informed by police that they had observed two individuals selling abalone. Information provided to her indicated that a suspected sale had occurred to a person in a vehicle which was subsequently checked and found to be registered to the defendant.
The defendant resided at a property at Pooraka. Search warrants were obtained in respect of various premises, including the defendant’s premises. On 18 November, Ms Tietzel, together with a number of fisheries officers and three police officers, attended at the defendant’s home intending to execute the warrants and search the premises.
During the search, Ms Tietzel interviewed the defendant. The interview was recorded. Ms Tietzel gave evidence that she had formed a reasonable suspicion that, if abalone were found on the premises, it was likely to be abalone from the earlier sale that had been observed by police. Ms Tietzel commenced the interview by introducing herself, and indicating the reason for her being at the premises. She told the defendant, “Okay, we have a search warrant to enter on to your premises today. We’re investigating abalone offences. I’m going to issue you a caution. You are not obliged to – I’m going to ask you some other questions. You are not obliged to answer them but anything you do or say will be recorded and can be later used in evidence do you understand”. The defendant replied, “Ok”.
He was asked whether there was any abalone on the premises. He said that he had bought some before, and it was stored at the house. He was asked a number of questions relating to the person from whom he had purchased the abalone. The questioning proceeded for some time, during which the defendant admitted he had purchased abalone on two occasions. He indicated that, on the first occasion, he had purchased about five kilograms and, on the second, about ten kilograms.
During the search of the premises, abalone was found and seized. The interview was conducted in the presence of other people in the house, some of whom were questioned while the search was being conducted.
The Magistrate’s reasons
Counsel for the defendant sought to have the evidence of the interview with the defendant excluded.
Counsel at trial submitted that Ms Tietzel had breached the obligations imposed upon her by s 83A of the Summary Offences Act 1953 (SA) (‘the Act’). Section 83A provides that a person whose native language is not English and who is not reasonably fluent in English, and who is suspected of having committed an offence, is entitled to an interpreter during questioning. Where it appears a person is so entitled, questioning must not proceed until the person has been informed of that right. The Magistrate considered that the defendant was reasonably fluent in English. The submission, therefore, failed.
Counsel submitted that the investigation had reached such a stage that a formal caution, in accordance with s 79A of the Act, should have been given at the commencement of the interview. Counsel further submitted that the caution which was given was inadequate at common law.
Section 79A of the Act provides that where a person is apprehended by a police officer, the person is entitled to have a solicitor, relative or friend present during any interrogation or investigation and, further, the person is, while in custody, entitled to refrain from answering any questions (unless required by law to do so). The Magistrate concluded that s 79A did not apply, as Ms Tietzel is not a police officer. It is to be observed that the evidence did not establish that the defendant was in custody, nor that he had been apprehended.
The Magistrate found that, at the commencement of the interview, Ms Tietzel had reasonable grounds for suspecting that the defendant had committed an offence. Thus, it was necessary for an appropriate caution to be provided prior to the commencement of the interview.
In considering whether the caution given was sufficient at common law, the Magistrate had regard to the following circumstances:
·The defendant was not forewarned of the attendance at his home by Ms Tietzel, three other fisheries officers and three police officers. He did not know in advance that he was going to be interviewed;
·The defendant was free to leave the premises during the interview. However, the defendant did not ask whether he could leave, nor was he advised that he was free to leave. During the course of the interview the defendant started to walk outside and was followed by officers as he did so. The Magistrate concluded that the defendant thought he could not leave and was required to answer questions;
·The defendant was clearly dishevelled during the interview. He told Ms Tietzel that he had just woken up and that he had drunk alcohol the night before;
·Ms Tietzel had time to prepare for the interview and had no concerns about her safety. She could not have formed an accurate assessment of the defendant’s fluency in English by the time she asked the crucial question as to whether there was abalone at the premises. It would have been a simple and prudent step for her to offer the defendant the assistance of an interpreter at the outset; and
·At no stage was the defendant ever told that he was being investigated in relation to the commission of any possible offence.
The Magistrate concluded:
If any of the matters to which I have referred had occurred in isolation, they would not, in my view, be sufficient to lead to unfairness to Duong, such that it would be appropriate for me to exercise my discretion to exclude the interview from evidence.
[…]
Having regard to all of the circumstances I consider that a more thorough caution should have been given to Duong prior to the commencement of the interview. He ought to have been given the opportunity to have a solicitor, relative or friend present during the course of the interview and, I consider, offered the opportunity of assistance via an interpreter. The brief caution that was given to him, namely that his answers may be used against him, ought to have been repeated and explained in express detail to him, prior to embarking upon the interview, particularly given the absence of any interpreter.
In the absence of those steps having been taken I find, on the balance of probabilities, that it would be unfair to Duong to allow the record of interview to be admitted into evidence and I exercise my discretion to exclude the record of interview in its entirety on this basis.
Summary of submissions by the appellant
The appellant submits that the record of interview was wrongly excluded. The appellant contends that the Magistrate’s exercise of her discretion miscarried in that she focussed upon potential rather than actual unfairness to the defendant. The appellant submits that, without hearing evidence from the defendant in person, the Magistrate erred in taking into account each of the factors which in combination established unfairness to the defendant. Further, the appellant submits that the Magistrate did not sufficiently outline how those factors combined to render admission of the evidence unfair.
The onus
It is for the party seeking to exclude the evidence to establish on the balance of probabilities the reason or reasons for exclusion. As Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ said in The King v Lee:[1]
The discretion rule represents an exception to a rule of law, and we think that it is for the accused to bring himself within the exception. We have called attention to the great breadth of the common law rule that a statement is not admissible unless it is proved to be voluntary. If it is proved to be voluntary then it is prima facie admissible. It is admissible as a matter of law unless reason is shown for rejecting it in the exercise of discretion.
[1] (1950) 82 CLR 133, 152-153.
Unfairness
The appellant submits that before exercising the discretion to exclude confessional evidence on the grounds of unfairness, the party seeking to exclude the evidence must establish actual unfairness. At least, prior to R v Swaffield,[2] a party seeking to exclude evidence by exercise of that discretion had to establish some material effect on the person making the confession.[3]
[2] (1998) 192 CLR 159.
[3] See Duke v The Queen (1989) 180 CLR 508, 513; R v Murphy (1996) 66 SASR 406, 411; Foster v The Queen (1993) 113 ALR 1, 7; R v Lobban (2000) 77 SASR 24, 36.
The defendant submits that there are cases where the circumstances faced by a defendant are so inherently unfair that the court need not consider the actual effect on the person. In Foster v R,[4] the appellant had been charged with arson. A confessional statement made at a police station was the only evidence of the appellant’s involvement. Two voir dires were held. At one, Mr Foster gave evidence that the statement had been concocted by interviewing police. The appellant gave evidence that he had signed the statement because he was threatened by police. The trial Judge ruled that the confessions should not be excluded. The appellant was convicted. The conviction was upheld by the Court of Criminal Appeal. Mason CJ, Deane, Dawson, Toohey and Gaudron JJ concluded that the approach of both the trial Judge and Court of Criminal Appeal was vitiated by error. Thus the question of discretionary exclusion had to be considered afresh.
[4] (1993) 113 ALR 1.
The majority judgment identified two discretions to be considered in the exercise of the Court’s discretion to exclude confessions. The first was a discretion to exclude a confession on the ground that its reception would be unfair to the accused. The second was a particular example of the general discretion to exclude evidence on public policy grounds. Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said: [5]
The considerations relevant to the exercise of each discretion have been identified in a number of past cases in the Court. To no small extent, they overlap. The focus of the two discretions is, however, different. In particular, where the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on “large matters of public policy” and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case. In a case where both discretions are relied upon to support an application for the exclusion of a voluntary incriminating statement obtained by unlawful police conduct, it will commonly be convenient for the court to address first the question whether the evidence should be excluded on the ground that its reception and use in evidence would be unfair to the accused...
[My emphasis, citations omitted.]
[5] (1993) 113 ALR 1, 7.
The majority considered the objectively ascertainable circumstances of the appellant at the time of the confessions. They concluded that the appellant was unlawfully arrested, taken from his home, unlawfully detained, allowed no opportunity to contact a lawyer, given no choice as to whether he would participate in an interview, and deprived the presence of any non-police witness in circumstances where the interview was not recorded. When considered in light of evidence that the accused was semi-literate, these considerations were said to constitute on their own substantial grounds to exclude the evidence on the grounds of unfairness to the accused.[6]
[6] (1993) 113 ALR 1, 8.
The majority commented that the conduct of the police officers was such that the public policy discretion had been enlivened. However, it was unnecessary to exclude the confession on public policy grounds in the particular case.
The exercise of the discretion in Foster was aimed toward the actual effect of the circumstances upon the appellant. While the discretion to exclude confessions on the basis of unfairness is geared towards the material effect on the person making the confession, this does not prevent inferences as to the actual effect being drawn from objective circumstances.
To the extent that there exists two discretions on which to exclude confessional evidence, “the unfairness discretion” and “the public policy discretion”, it is clear from the authorities that those discretions overlap in the sense that they require consideration of some of the same factors.[7] However, the discretions are geared towards different ultimate questions. Evidence can be excluded in exercise of the public policy discretion without the party seeking to do so establishing actual unfairness.[8] In the present case, the defendant does not rely upon the public policy discretion. Counsel for the defendant submits that the objective facts established and found by the Magistrate lead to the inference that the conduct and circumstances surrounding the admissions resulted in unfairness to the defendant.
[7] See Foster v R (1993) 113 ALR 1, 6-7 (quoted above).
[8] This is contemplated in Cleland v The Queen (1982) 151 CLR 1, though note Gibbs CJ’s reservations at 9 as to whether, in light of the unfairness discretion, the public policy discretion would ever be invoked. See also Collins v R (1980) 31 ALR 257, 317; Williams v Queen (1986) 161 CLR 278, 286; Foster v R (1993) 67 ALJR 550, 554.
In R v Swaffield the joint judgment of Toohey, Gaudron and Gummow JJ considered the relationship between the unfairness discretion and the public policy discretion. Their Honours said:[9]
When the Court resumed after the first day’s hearing, the Chief Justice asked counsel to consider whether the present rules in relation to the admissibility of confessions are satisfactory and whether it would be a better approach to think of admissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards.
… Subject to one matter, an analysis of recent cases, together with an understanding of the purposes served by the fairness and policy discretions and the rationale for the inadmissibility of non-voluntary confessions, support the view that the approach suggested by the Chief Justice in argument already inheres in the common law and should now be recognised as the approach to be adopted when questions arise as to the admission or rejection of confessional material. The qualification is that the decided 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.
[9] (1998) 192 CLR 159, 194-195.
As I have observed, the unfairness discretion is geared toward the actual effect of the circumstances on the person’s mindset. The public policy discretion is geared to more general considerations and may be invoked without reference to the mindset of the person making the confession. If those discretions are subsumed by the general discretion outlined in Swaffield, what is the focus of that discretion?
Returning to Swaffield, the joint judgment discussed whether the discretion, at least insofar as it applies to conversations secretly recorded, should be considered in terms of whether the privilege against self incrimination has been impinged. The joint judgment discussed Canadian authorities, though noted that regard must be had to the influence of the Canadian Charter of Rights and Freedoms. Reference was made to R v Hebert, where McLachlin J said that “the decision to speak to the police must be the product of an operating mind.”[10]
[10] [1990] 2 SCR 151, 182 quoted in (1998) 192 CLR 159, 200.

The joint judgment in Swaffield said:[11]
… In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.
[11] (1998) 192 CLR 159, 202.
Thus the Court enunciated an approach to the broad discretion which also bears in mind the accused’s right to choose whether or not to speak to police. There is a question as to whether the joint judgment intended the “right to choose to speak” element of the test to apply only to the particular situation of confessions secretly recorded. In my view, consideration of that question is relevant when ascertaining the adequacy of a caution. The test looks to whether the person making the confession has made an informed choice to speak, that is, whether the person had the capacity to choose.
In R v Kageregere, Kourakis J (as he then was) said:[12]
The common law rule of evidence excluding involuntary statements buttresses the privilege against self incrimination where the capacity to choose is completely overborne.[13] In less extreme cases a discretion may be exercised to protect the privilege. In the exercise of that discretion the public interest in the efficient police investigation of offences is given substantial weight by striking a balance between it and the competing public interest in fair trials. An evaluative judgment is called for having regard to a number of considerations including: the extent to which the interviewee’s capacity to choose has been compromised,[14] the likelihood, at the time that the statement was made, that he or she would be prosecuted,[15] impropriety associated with the questioning[16] and the reliability of the statement.[17] The admission of answers to a comprehensive police interrogation of a person who is likely to be charged, and is under substantial psychological pressure to answer police questions, would significantly undermine the privilege against self incrimination. It is for that reason that the admission of such a statement may be procedurally unfair and is liable to be excluded in the exercise of the discretion.
[12] [2011] SASC 154, [56].
[13] R v Swaffield (1998) 192 CLR 159, [74]
[14] R v Swaffield (1998) 192 CLR 159, [95].
[15] R v Swaffield (1998) 192 CLR 159, [94].
[16] R v Swaffield (1998) 192 CLR 159, [77].
[17] R v Swaffield (1998) 192 CLR 159, [78].
Kourakis J found that the confessions were voluntary. He noted that the question of reliability was of little importance as the statements in question were tendered to show a consciousness of guilt. He found that the evidential material known to the police at the time of the interview pulled strongly toward the defendant as a suspect. The interview was systematic and comprehensive and any evidence obtained was likely to be substantial if the defendant was subsequently charged. The interviewing police officer knew the defendant to be tired and that the defendant’s son was unsettled. The police officer’s decision to continue the interview in those circumstances may have been acceptable if the defendant had been cautioned and advised that he was a suspect. The defendant was dependent on an interpreter and had no knowledge of his rights and obligations. The interpreter had said that the defendant should stay and answer questions. In fact, the defendant had nowhere to go until the police arranged for the assistance of a welfare agency. The defendant had told the interpreter and another witness that he did not want to answer questions. The evidence of the interview was not overly significant to the prosecution case, and as such the public interest in securing the conviction of offenders did not pull strongly toward admitting the evidence. His Honour concluded that the continued questioning of the defendant was geared toward undermining the defendant’s right to silence. The evidence was excluded.
Counsel for the defendant submits that the circumstances of each case dictate the amount of information which must be provided to a defendant to ensure fairness. I agree with that submission. The level of information required before a choice to speak will be sufficiently informed will differ. As Doyle CJ said in R v Murphy:[18]
I accept that the requirements of fairness are not to be turned into fixed categories, and that what was said by Mason CJ in Van der Meer and by King CJ in R v Dolan does not state exhaustively what may be required in fairness is to be observed. In a particular case it might be necessary for a police officer who is questioning a person, not a suspect, to bring to that person’s attention the fact that his or her possible involvement is under consideration. That might be necessary if, for some reason, the person is at a disadvantage because his or her attention has been diverted from the significance of the matter under consideration (for example, by shock or by grief or because of an injury), if the person is not aware of the significance of the occasion (for example, if the person thought that the inquiries related to a minor matter only when in fact they related to a serious matter), or if the person is under the impression that the police are making casual inquiries only, or if the person thinks for some reason that there is no need to give careful consideration to his or her answers. In such a case fairness might well require the police, in one way or another, to alert the person to the fact that the questions being put relate to a serious matter and that they will include matters relevant to the possible involvement of the person questioned.
[18] (1996) 66 SASR 406, 414.
The Magistrate’s decision
I note this is an appeal against an exercise of discretion. I have had regard to the oft quoted passage of Dixon, Evatt and Tiernan JJ in House v The King:[19]
... The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. ...
[19] (1936) 55 CLR 499, 504-505
The Magistrate made the following findings:
·When Ms Tietzel and other officers and the police attended at the premises, Ms Tietzel held a reasonable suspicion that an offence had been committed, and a person who had access to the defendant’s motor vehicle had been involved.
·Although, at the commencement of the interview, it was not clear who had driven the vehicle when observed by the police, Ms Tietzel considered a caution was required to be given to the defendant at the outset of the interview.
·Ms Tietzel had reasonable grounds to suspect the defendant had committed an offence.
·It was necessary for Ms Tietzel to give an appropriate caution prior to commencing the interview.
·The defendant was not aware in advance of the officers’ attendance at his home.
·The defendant thought he could not leave and was required to answer questions
·The defendant had just woken up when first questioned.
·The defendant understood the questions which were asked.
·The defendant was not informed that he was under investigation.
She concluded:
If any of the matters to which I have referred had occurred in isolation, they would not, in my view, be sufficient to lead to unfairness to Duong, such that it would be appropriate for me to exercise my discretion to exclude the interview from evidence.
However, the circumstances in which the interview with Duong was concerned, when viewed together, cause me concern. Duong presented as a person who had just woken up and was suffering the effects of a hangover. He was confronted with 3 police officers and 4 fisheries officers who had arrived at his home unannounced. Although he clearly has a grasp of the English language it was not his native language. He was not told he was under investigation for any particular offence although he was told the officers were “investigating abalone offences”.
He was not told he was free to leave at any time and in fact the behaviour of the officers present intimated to the contrary. He was only asked his name, address and date of birth before being given a very brief caution, to which his only response was “Ok”. This was then followed by a request for identification before the question going to the heart of the issue – namely the presence of abalone on the premises – was asked and answered.
I am required to take into account all of the circumstances to determine whether in this case, it would be unfair to admit the interview, in circumstances where it would otherwise be admissible, if to do so would result in Duong receiving an unfair trial.
Having regard to the circumstances of the interview taken as a whole, I find on the balance of probabilities that it would be unfair to Duong to admit the interview into evidence.
The appeal
Failure to adequately caution
The evidence was:
Police said: I think this is the owner of the house
Tietzel said:        Ok. Uhm can you please state your full name?
Duong said:        Yeah, Dang, D-A-N-G.
Tietzel said:        Ok, aah your residential address?
Duong said:        Yep
Tietzel said:        Yep, do you live?
Duong said:        Live here
Tietzel said:        OK, and what’s the address of this place?
Duong said:        Lot 22 Scott Street, Pooraka.
Tietzel said:        Ok, and your date of birth?
Duong said:        1^st of December 68.
Tietzel said:        Ok, we have a search warrant to enter onto your premises today. Uhm we’re investigating abalone offences. Uhm I’m going to issue you a caution. You’re not obliged to. I’m gonna ask you some further questions.
Duong said:        Yep
Tietzel said:        You’re not obliged to answer them, but anything you do or say will be recorded and can later be used in evidence. Do you understand?
Duong said:        Ok
The complaint that the defendant should have been advised that he was a suspect has merit. The fact that did not occur is not sufficient for the exercise of the discretion. The Magistrate did not consider that this complaint alone justified the exclusion of the evidence. There are instances in which the withholding of information can result in the exclusion of a confession. However, the failure to advise a person he is a suspect in the circumstances would not justify the exercise of the discretion to exclude the evidence.
Failure to forewarn the defendant
The Magistrate considered that the defendant was not forewarned of the interview was a relevant factor. The interview was conducted during a search of the defendant’s premises. The effectiveness of the search would obviously be vitiated by forewarning to the defendant. Investigations more often than not proceed without forewarning suspects that they are to be interviewed. So long as adequate cautions and adequate opportunity is given to a defendant to seek legal advice, it cannot usually be unfair not to forewarn a defendant of the request to answer questions.
The number of officers who attended
The Magistrate concluded that the fact four fisheries officers and three police officers attended the defendant’s home was a relevant factor. The number of officers who attended were required to assist in the search of the premises. There was no evidence that the defendant was in any way intimated by the presence of so many officers.
Was the defendant under arrest?
The Magistrate concluded that the defendant thought he could not leave the interview and was required to stay and answer Ms Tietzel’s questions. The latter finding, that the defendant thought he was required to answer questions, is not supported by evidence. The caution given is evidence that the defendant knew he was not required to answer questions.
The Magistrate concluded that Ms Vuong, a woman who was present during some of the interview, was told by Ms Tietzel that she was unable to leave. This was a factual error. Ms Tietzel told Ms Vuong that she was free to leave at any time.
At one point in the interview, investigators followed the defendant outside as he walked around his home. The Magistrate saw this as supporting her conclusion that the defendant believed he could not leave. Throughout the interview the defendant walked about his house and assisted investigators in their search. He appeared very relaxed.
Counsel for the defendant submits that the inference was open for the Magistrate to conclude that the defendant believed he was unable to leave. In my view, the inference was not reasonably open on the evidence. As I have observed, the defendant freely moved around the property. He was never told he could not leave. However, even if the conclusion that he believed he was not free to leave is open, that is not a ground for concluding it was unfair to question him. There is no evidence that his free will was overtaken.
The defendant’s condition
The defendant had just woken up at the time of the interview. He said he had drunk alcohol the night before. The Magistrate concluded that this supported the exercise of the discretion. The Magistrate had no clear evidence as to how those factors actually effected the defendant’s choice to speak to Ms Tietzel. Admittedly, he appears dishevelled in the interview. Nevertheless, he clearly understood the questions put to him. The conclusion as to the influence of alcohol or tiredness was speculative.
The defendant’s ability to understand
The Magistrate accepted that the defendant had a good understanding of English and that Ms Tietzel’s decision to proceed to question him without informing him of a right to an interpreter did not, of itself, justify the exercise of the discretion. The Magistrate considered the failure to offer the defendant an interpreter as a factor supporting the exercise of the discretion. The findings of the Magistrate were inconsistent with the conclusion that the failure to provide an interpreter was a relevant factor in the exercise of the Magistrate’s discretion.
Failure to have legal advice
The Magistrate found that the defendant should have been given the opportunity to have a solicitor, relative or friend present during the interview. The Magistrate had no evidence as to how Ms Tietzel’s failure to give the defendant this opportunity rendered actual unfairness to him in terms of his capacity to choose to speak. The fact that no solicitor was present for the defendant is not itself sufficient. As Connolly J said in R v Hart:[20]
…The circumstance that an accused person has been refused access to his solicitor will not render evidence of his subsequent interrogation legally inadmissible but it may well be a ground for the exercise of the discretion to reject the confession if the judge regards it as unfair to allow it to be used in all the circumstances.
[20] (1979) Qd R 8, 13.
There was no finding of actual unfairness resulting from the combination of circumstances in which the defendant found himself. There was no finding that the failure to offer a solicitor, relative or friend was improper or illegal.
Counsel for the defendant submits that the irregularities found by the Magistrate are sufficient for her to have concluded that to admit the interview is unfair to the accused. He submits it was open to the Magistrate to conclude that the circumstances were sufficient to establish unfairness to the accused sufficient to enliven the discretion.
Failure to give evidence
The actual unfairness on the person making a confession is a vital consideration in the exercise of the discretion. The onus in persuading the judge or magistrate rests on the party seeking to exclude the evidence. The defendant’s failure to give evidence on the voir dire supports the submission that the discretion has miscarried. In The Queen v Sharp Cox J said:[21]
It is necessary to bear in mind that, the voluntariness of the admissions having been proved, it is for the accused to establish the facts upon which he wishes the Court to exercise its discretionary power to exclude the admissions. I have found that the accused was not arrested and was free go to on his way. It is possible, however, that he believed, like Byczko, that he had been arrested, or that he believed, for some other reason, that he had no choice in the matter. That, as it seemed to a majority of the Full Court, was Byczko's situation. It is also possible that the accused was under no misapprehension at all. He may, for all I know, be an old hand at this kind of thing, with a knowledge of the powers of the police to search for weapons and an adequate appreciation of a practice by police officers of distinguishing, in their words and actions, between arresting a man and, on the other hand, inviting him to go to a police station for questioning. It is possible that the accused, knowing that he had been present at the house when Miss Friday was killed, thought it prudent, and more likely to allay suspicion, to comply willingly with the police request and answer their questions rather than to insist upon his right to depart. In short, there is more than one plausible explanation, on the material before me, for the accused's compliance, and it is therefore an important factor, in my view, that the accused has chosen not to give evidence on the voir dire. On an issue upon which the accused carries the burden of proof and in which the reasonable possibilities go both ways, I do not see why I should draw inferences favourable to the accused which he has declined to support for himself in the witness box.
Of course, there may be cases which are so clear that the Court can confidently find in an accused person's favour, on an evidence application of the present kind, notwithstanding his failure to give evidence. In The Queen v. Stafford and The Queen v. Killick, for instance, the evidence in each case was that the accused had been handcuffed and taken away. There could hardly be any argument in those cases about the fact of arrest, whether the accused gave evidence on the subject or not. But a particular conclusion will not always be so transparently clear. I notice that in The Queen v. Lavery and in Cleland v. The Queen the accused gave evidence on their voir dire applications. So, as I have said, did Byczko. Where it is a matter of an accused person's state of mind and the circumstantial evidence on that subject is by no means conclusive, the failure of the accused to give evidence about it may be important.
[Footnotes omitted.]
[21] (1983) 33 SASR 366, 371-372.

The Magistrate’s conclusions were not supported by the evidence. Although it is not essential for a defendant to give evidence on the voir dire, in cases in which the defendant seeks to exclude the evidence of an interview on grounds of unfairness, it is difficult to establish unfairness to a defendant without their evidence. This is not a case in which the evidence was so clear that the required inference of unfairness could be drawn.
Conclusion
The onus was on the defendant to satisfy the Court that the evidence should be excluded. The factors relied upon by the Magistrate did not, in my view, support the exercise of the Magistrate’s discretion to exclude the evidence.
The appeal is allowed. The order of the Magistrate is set aside. The matter is remitted to the Magistrates Court for rehearing.