Michaelis v Police

MICHAELIS V POLICE
[1999] SASC 102

Magistrate’s Appeal

MARTIN J. (Ex tempore) The applicant was found guilty on 13 November 1998 of a charge of unlawful possession. The notice of appeal listed four grounds, but only two were argued. The remaining two were abandoned.
The grounds argued are that the magistrate erred in admitting into evidence conversations between the applicant and a police officer and in finding that there was a case to answer.
Although an extension of time is sought within which to appeal from a conviction, the matter proceeded before me on the merits.
On 8 December 1997, Detective McManus, and six other police officers, attended at the applicant's premises at Norwood. They were pursuing enquiries with respect to information that the applicant had received a number of laptop computers and video projectors. The applicant operated a fitness business on the premises in which he lived. The two areas were separated. He also conducted a catering business and a security staff organisation from those premises. A number of persons beside the applicant were there when the police arrived.
Objection was taken to the admission of conversations at the premises between McManus and the defendant. A record of the conversations was typed up for prosecution purposes. It also contained some narrative facts. The transcript shows the record was admitted for the purposes of having the magistrate rule on the admission of the conversations in issue.
McManus gave evidence that, upon arrival, he introduced himself to the applicant, and asked him whether he was Mathew Michaelis. The applicant responded that he was and McManus then told him the police had information that he was in possession of stolen video projectors and laptop computers. McManus said he had a warrant to search the premises and produced a general search warrant. The applicant appeared to read the warrant and remarked that the warrant was not specific and did not relate to a specific address. McManus said he told the applicant that the general search warrant allowed him to search any premises where he suspected stolen property to be located, as a result of which the applicant went to another office of the premises, apparently in an attempt to contact a solicitor. It seems this was not successful.
McManus then told the applicant he was sure that his solicitor would have told him that the warrant entitled the police to search the premises and they intended to do so. McManus said the applicant accepted what McManus had told him and then he said, that is McManus, “We only want to cause you a minimum disruption to your business, Matthew, so can you show me any laptops that you might have here”. The applicant pointed out a laptop on the desk near a doorway into the central passage of the premises. McManus then asked about video projectors and claimed that when asked whether he had any of those, the applicant replied “No”.
The applicant admitted living on the premises and agreed to McManus' request it show him his room. The room to which the applicant took McManus was off the central passageway of the premises.
It was McManus' version of the events that the applicant was asked whether all the property in the applicant's room was his and he replied that it was. McManus also said the applicant told him that no-one else occupied the room. A request was made for receipts relating to electrical items located in that room and next door, to which McManus says the applicant responded that they would all be with his accountant at Port Adelaide.
A search of the room was then conducted. Detective Farrington discovered a video projector in a wooden trunk, which was produced to McManus and the applicant. McManus claims he said to the applicant that he thought the applicant had earlier stated he did not have any video projectors. The applicant replied that he was not saying anything further. McManus says that he accepted that reply, but continued the search of the premises.
Subsequently, he had a further conversation with the applicant which was recorded by a tape recorder. The record of that taped interview discloses McManus sought to have the applicant agree with McManus' summary of what had earlier occurred at the premises. There was some dispute apparent in the record of interview. In particular:
(i).... the applicant maintained that prior to the projection unit being located in the living area, he had said he was not prepared to answer questions and had simply said they were free to search the premises;
(ii)he disputed the proposition put him by McManus that when McManus asked him, shortly after their arrival, whether there were any laptops or video projectors on the premises, he had agreed there was a laptop computer, but denied there were any video projectors. He maintained he did not deny anything and had pointed out the laptop standing immediately behind him, because he thought it would be blatantly obvious to McManus. He disagreed that he had said he did not have a video projector.
According to McManus, after this denial, he said he wanted to ask the applicant questions about the video projector. The applicant asked what McManus wanted to ask. McManus then cautioned the applicant, telling him that he did not have to answer his questions, but that anything the applicant did say would be recorded and might be given in evidence. That was the first occasion when a caution was administered.
In essence, the applicant told McManus that bearing in mind he had just received advice from his solicitor to sit and listen, that McManus should continue to ask questions and the applicant would sit and give no response.
A few further questions were put to the applicant and he indicated that he did not wish to answer questions specific to any electrical pieces of equipment or item that the police found inside the premises.
It is submitted that the conversation between the applicant and McManus should not have been admitted into evidence given that McManus had reasonable cause to believe the applicant was in possession of stolen property at the time McManus attended at the premises. It was said that McManus, holding that suspicion, had to caution the applicant immediately and identify the specific offence that he was then investigating.
In submissions today, Mr Edwardson effectively conceded that Mr McManus had identified the specific offence that was being investigated when he said at the outset that they had information that the applicant was in possession of stolen video projectors and laptop computers.
McManus acknowledged in evidence that when he went to the premises, he had reasonable cause to believe that there were stolen goods on the premises. During cross-examination, he gave the following evidence about his state of mind:
“Q.... In other words, you had reasonable cause to suspect, so you tell us, that there was stolen goods on the premises.
A.    Yes.
Q.... And it is also correct, is it not, that you had reasonable cause to suspect that Mr Michaelis was in possession of stolen property.
A.    That was the extent of the information, yes.
Q.    That was your state of mind, was it not.
A.... No. I think I should get this clear here. We had certain information which I have told the court of which Mr Michaelis was the subject of that information.   I didn't consider him a suspect, which I think is quite important.”
Later in evidence, McManus repeated that he did not consider the applicant a suspect. He insisted there was no obligation upon him, when telling the applicant of his intention to execute the general search warrant, to advise the applicant that he did not have to answer any questions. He maintained that, when asking questions about who lived on the premises, he was simply trying to narrow down parameters of his search.
He agreed that when the projector was discovered he did not immediately caution the applicant. McManus insisted he had not cautioned the applicant even when the projector was found in the living quarters of the premises because he had “no real further suspicions” that the applicant had committed an offence.
The further search was designed to discover whether there were boxes or manuals for the projector which might provide a reason for the projector being on the premises.
In his outline and oral submissions, counsel for the applicant argued that because McManus had reasonable cause to believe that the applicant was in possession of stolen property, it was incumbent upon him to caution the applicant in the usual manner and also to identify the specific offence then being investigated. Counsel referred to The Queen v Szach (1980) 23 SASR 504 and R v Dolan (1992) 58 SASR 501.
Mr Edwardson urged the view that a belief the appellant was in possession of stolen property was a belief that he had committed the offence. So characterised, he argued that Dolan required a caution to be administered at the outset. For these purposes, he argued that the defence provided in s41.2 of the Summary Offences Act 1953 should be ignored.
On a strict view of s41, it might be said that the belief possessed by McManus amounted to a belief that the applicant had committed the offence. In my view, however, the existence of the defence in sub-s2 and the stage of the investigation cannot be ignored in determining whether a caution was required. The circumstances of this matter were far removed from those that existed in Dolan.
At the outset of the events at the applicant's premises, the police were clearly conducting an investigation. That investigation had not reached the point, for example, where McManus was about to embark upon a systematic interview of a prime or definite suspect. He was endeavouring to ascertain the facts, such as what property was on the premises, who laid claim to ownership of it and the occupants of the area of the premises in which the property was located. The investigation had not passed from the investigatory stage to the accusatory stage as described by King CJ in Dennis v R (unreported judgment of the South Australian Court of Criminal Appeal, delivered 8 December 1993). The circumstances of this matter are much closer to those that existed in Dennis than those in Dolan.
McManus administered the caution after the video projector had been located and the applicant had, according to McManus, falsely denied that he had earlier told McManus that he did not have any video projectors at the premises. It is not surprising that the accumulation of events and that false denial resulted in McManus deciding it was appropriate to administer the caution.
In these circumstances, in my view the magistrate properly refused to exclude the conversations between McManus and the applicant. The magistrate considered whether it was unfair to the applicant to admit the contents of the conversations. He was of the view that there was no impropriety, illegality, or any suggestion that the police had acted other than in a bona fide manner.
A review of the evidence does not disclose any basis for a finding that the applicant was unfairly treated in any respect. In this context I refer to Van Der Meer v R (1988) 62 ALJR 656. At the outset, the police advised the applicant that they had information he was in possession of stolen video projectors and laptop computers. The applicant displayed a good knowledge of his rights. He questioned the validity of the search warrant, even to the point of observing that it did not relate to a specific address. Soon after the taped conversation commenced, the applicant appears to have spoken to his solicitor, as he later advised McManus of that conversation and the advice that he was to sit and listen without giving any response. He exercised his rights in accordance with that advice.
There was simply nothing in the evidence to give rise to concern that the applicant was treated unfairly in any manner.
Counsel next contended that the conversation between McManus and the applicant should have been excluded as involuntary. He relied upon the following words that occurred early in the conversation: “We only want to cause you a minimum of interruption to your business, Matthew, so can you show me any laptops you might have here?”.
Those words occurred after the initial introductions during which McManus advised the applicant of the information they had concerning possession of stolen video projectors and laptop computers and after the applicant had questioned the validity of the search warrant. In addition, the applicant had made an unsuccessful attempt to contact his solicitor and McManus had advised him of his, McManus', view that his solicitor would tell him the warrant entitled the police to search the premises and that is what they intended to do.
It was a polite comment indicating the police did not wish to unduly interrupt the conduct of his business by their presence and conduct. The statement was not intended as an inducement. It could not have been interpreted by the appellant as an inducement. In particular, it could not have been interpreted as an inducement to answer questions. McManus explained that they were present to check out the information and wanted to cause a minimum of interruption.
As I mentioned previously, the magistrate accepted there was no impropriety, illegality, or any suggestion that the police had acted other than in a bona fide manner. It is clear from his Honour's reasons that he rejected any suggestion of improper purpose or pressure as had been suggested in the course of the cross-examination of McManus. In these circumstances, there is no possible basis for a finding that the Crown failed to prove that the answers given by the applicant were voluntary.
The final proposition put by counsel for the applicant in his written outline, but not pursued in oral submissions, was that the court should have excluded the evidence of the conversations because McManus failed to present the applicant with a copy of his handwritten notes of the conversation. Counsel referred to Coleman v Zanker (1992) 58 SASR at 7. The circumstances in that case were, however, quite different. Police officers had unlawfully searched a suspect's vehicle and failed to administer a caution at the appropriate time. The officer had deliberately refrained from affording the person interviewed an opportunity of perusing the notes when the officer and that person were at the police station. The learned judge on appeal from the magistrate regarded the explanation of the officer for failing to do so as verging on the incredible.
The applicant was arrested at his premises and conveyed to the police station. McManus wrote his notes of the initial conversation after he had arrested the applicant. While it is not clear from the evidence given by McManus where he was when he made the notes, it is a clear implication from his evidence, and that given by another officer, that they were made after the return to the police station. There were three pages of notes.
Of importance, upon return to the police station, McManus advised the solicitor for the applicant who had attended at the station that he had some notes which were not completed. He made an arrangement with that solicitor to fax a copy of the notes to the solicitor's office.
In these circumstances, there is no basis for suggesting that the failure to present the applicant personally with a copy of the notes gave rise to any grounds for the exercise of the discretion to exclude evidence of the conversation.
The first ground of appeal fails.
The second ground complains that the magistrate erred in finding there was a case to answer. Counsel submits that the magistrate misunderstood and misapplied the judgment in R v Myall (1986) 43 SASR 258 and made errors in drawing certain inferences.
His Honour does appear to have misunderstood the decision of the Full Court in Myall when he said the court held that the trial judge was correct in rejecting the submission that the prosecution had failed to establish a case to answer. In approaching his task, however, his Honour posed the correct test as enunciated in R v Bilick and Starke (1984) 36 SASR 321 which was applied in Myall.
In my view, the magistrate was clearly correct in finding that the prosecution had made out a case to answer. The evidence for the prosecution was capable of establishing that the applicant lived and worked at the premises that were the subject of the search. The living part of the premises was clearly separate from the business areas. The projector was found in a room which the applicant admitted was his bedroom. It was found in a trunk and there were stickers on it similar to those on a roll seen in the office area of the premises. According to the evidence of McManus, which was to be accepted for these purposes, the applicant said that all the property in the room was his and no-one else occupied that room. Although it was not strictly needed in order to establish a case to answer, there was also evidence of a false denial which was capable of being viewed as evidence of a consciousness of guilt.
The second ground of appeal fails.
The application for an extension of time is not without merit and, as I understand Mr Hinton, it would not have been opposed. The matter was not argued, however, and it need not be determined. It is refused given that the grounds sought to be argued have not been made out.
The appeal is, therefore, dismissed.

[1999] SASC 102

11 March 1999