Police v Hunt

Case [2024] SASC 107

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

POLICE v HUNT

[2024] SASC 107

Judgment of the Honourable Justice McDonald 

22 August 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - OTHER CASES

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - FUNCTIONS OF JUDGE AND JURY - DETERMINATION OF ADMISSIBILITY - VOIR DIRE PROCEEDINGS

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - VOLUNTARINESS - GENERALLY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

This was an appeal against an evidentiary ruling of a Magistrate on a voir dire, excluding evidence of admissions said to have been made by the respondent.

The respondent, a long-serving police officer, was charged with one count of committing an assault causing harm, in contravention of s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The conduct the subject of that charge was said to have occurred after a disagreement between the respondent and his wife, following which the respondent threw a glass at his wife’s head. Having injured his wife, the respondent called for emergency services to attend the scene, and thereafter made a number of admissions to having thrown the glass at his wife in a fit of frustration to emergency operators and a police officer who attended the respondent’s residence, Brevet Sergeant Batty. Soon after arriving at the scene, and ascertaining the identities of the respondent and his wife, Brevet Sergeant Batty cautioned the respondent, twice, before inquiring into the circumstances surrounding the respondent’s wife’s injuries. Notwithstanding those cautions, the respondent admitted to having thrown the glass.

Thereafter, having advised the respondent that he was not under arrest and could leave at any time, Brevet Sergeant Batty transported the respondent to the Mount Barker Police Station and commenced a formal interview into the alleged assault. During that formal interview, Brevet Sergeant Batty, twice more, cautioned the respondent, without placing him under arrest. The respondent subsequently reiterated his earlier admission to having thrown the glass at his wife in a fit of frustration. The respondent was consequently arrested and charged.

Before the Magistrate, the respondent successfully applied on a voir dire to have evidence of his admissions, recorded on Brevet Sergeant Batty’s body worn camera and on the formal record of interview, excluded from the trial against him. The bases upon which the Magistrate excluded that evidence included: that the admissions were involuntarily given, insofar as the friendly and welfare-focused demeanour of Brevet Sergeant Batty undermined the gravity of the cautions given thereby to the respondent; that the admissions were involuntarily given, insofar as the respondent was intoxicated at the time of making them; that the admissions were made at a time when the respondent was under de facto arrest, and not…

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AGLC
Police v Hunt [2024] SASC 107
Case
[2024] SASC 107
Decision Date

CaseChat Overview and Summary

The appeal in Police v Hunt concerns the exclusion of admissions made by the respondent, who was allegedly involved in a domestic dispute, by the Magistrate in a voir dire hearing. The appeal was brought under s 42(1a)(b) of the Magistrates Court Act 1991 (SA) and challenges the Magistrate’s conclusions that the admissions were involuntary, made under de facto arrest, and excluded in the exercise of discretion, as well as the adequacy of the reasons provided. The primary issue before the court was whether the Magistrate erred in her determination of the admissibility of the respondent's statements, specifically whether they were voluntary and made under circumstances that would render them inadmissible.

The court considered the threshold tests set out in s 42(1a) of the Act, particularly focusing on whether the interlocutory judgment substantially weakened the prosecution case, potentially leading to the abandonment of the prosecution. The court referred to the case of R v Marshall, which provided guidance on the meaning of “substantially weakens” as something of major or critical importance. Given the limited evidence available to the prosecution, the court concluded that the ruling substantially weakened the prosecution case. The court also evaluated whether, if correct, the ruling was likely to lead to the abandonment of the prosecution, a determination based on the specific facts and circumstances of the case. The court found that the exclusion of the admissions likely led to the abandonment of the prosecution, satisfying the second limb of the threshold test.

The court found that the appeal met the criteria for an interlocutory appeal as the judgment substantially weakened the prosecution case and was likely to lead to the abandonment of the prosecution. Therefore, the court granted permission for the appeal to proceed. The final orders of the court would likely address the admissibility of the respondent's statements, potentially leading to a retrial or further consideration of the evidence against the respondent.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal of a ruling delivered by a Magistrate, on a voir dire hearing, excluding the evidence of admissions said to have been made by the respondent. The appeal is brought pursuant to s 42(1a)(b) of the Magistrates Court Act 1991 (SA) (‘the Act’). The grounds of appeal are that the Magistrate erred in that she:1.concluded that the admissions were made involuntarily;2.concluded that the admissions were made whilst the respondent was under de facto arrest;3.excluded the admissions in the exercise of her discretion, and;4.failed to provide adequate reasons.The facts At some time after 9.00 pm on 24 November 2022, an emergency call was made to SA Ambulance. The caller identified himself as “Trevor” and his wife as “Alicia Hunt”. He provided the respondent’s telephone number and a location of Frank Potts Reserve at Langhorne Creek. There is no dispute that the caller was the respondent. During the call the respondent relevantly said the following: ·“….My wife was injured to her forehead”·“I threw a glass at her”·When asked when it happened he responded, “Five minutes ago” The respondent’s wife was then put on the telephone. At about 9.16 pm, Brevet Sergeant Glenn Batty was tasked with attending at Frank Potts Reserve, Langhorne Creek. The information that he had received at that time was that SA Ambulance had notified SAPOL that a female had been injured after a glass had been thrown. He was advised that the job was a “106”, which is code for a domestic dispute. He arrived at the scene at about 9.38 pm. On arrival Brevet Sergeant Batty activated his body worn camera. At that time, the respondent was outside of, but in close proximity to, a caravan. The alleged victim, Alicia Macaulay, was inside the caravan with an obvious lump and laceration to her forehead. She was being attended to by paramedics. Brevet Sergeant Batty entered the caravan for a brief period of time and his body worn camera captured an exchange between Ms Macaulay and the paramedics, in which she told them that she had been struck on the forehead with a glass. On that basis, Brevet Sergeant Batty directed his attention to the respondent, initially to obtain the details of the two parties. Very shortly into the conversation, the respondent advised that he was a serving police officer and that he was stationed at Ottoway, Port Adelaide. Upon receiving that information, Brevet Sergeant Batty made a call on his police radio to request that his supervisor, the on-duty patrol sergeant at Mount Barker, give him a call. It was Brevet Sergeant Batty’s evidence that he wanted to speak with his supervisor because it was the first time that he had dealt with a potential offender who was a police officer. He said he was “taken aback” and wanted to find out the correct protocol. By the time the supervisor called Brevet Sergeant Batty back, he was in his police vehicle. The initial part of the conversation was recorded by Brevet Sergeant Batty’s body worn camera. During the course of that conversation, Brevet Sergeant Batty advised his supervisor that the respondent was a serving police officer and there was some discussion surrounding where he worked. The following exchange then occurred:Officer on the ph: Yeah…ok…Sure…Ah, so I suppose once you’ve confirmed that the glass is thrown by him (inaudible) because it’s only the two of them there…GB:Yeah…Officer on the ph: Ahh. I take it you’re gonna be looking at 21’ing him?GB:Oohh..I’ll have to notify the shift manager too, first…Officer on the ph: Yeah, yep

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Immediately upon his arrest, the respondent was provided with his arrest rights. It is clear that he understood those rights, which is not surprising given his length of service as a police officer. A preliminary issue – an interlocutory judgment This is an appeal against an interlocutory decision. As a consequence, it must satisfy the threshold tests set out in s 42(1a) of the Act. That subsection relevantly provides:42—Appeals…(1a)An appeal does not, however, lie against an interlocutory judgment unless—(a) the judgment stays the proceedings; or(b) the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or(c) the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.… The appellant relies on the second limb of the threshold test on the basis that “the judgment destroys or substantially weakens the prosecution case”. In R v Marshall,[12] the Court of Appeal gave consideration to equivalent wording in s 157(3) of the Criminal Procedure Act 1921 (SA). As to the meaning of “substantially weakens”, the Court said the following:[13]As for the phrase “substantially weakens”, in DPP v Paulino, the members of the Court described the word “substantially” as suggesting “something not very far short of elimination”, and something which is at least “very important” or of “major importance”. Regrettably, by selecting the word “substantially”, Parliament used a word that is well-recognised as protean in nature, taking its colour from the context in which it appears. In this case, the word is preceded by the word “destroys” and it is followed by the phrase “and, if correct, is likely to lead to abandonment of that charge”. The use of the word in this context demonstrates that it is intended to refer to an interlocutory judgment that is of major or critical importance, for if the judgment is correct, it is likely to lead to the abandonment of the charge.(Footnotes omitted)[12] [2023] SASCA 105.[13] Ibid at [135]-[136]. The evidence available to the prosecution on the case against the respondent is limited. It essentially comprises of the impugned admissions, which were preceded by earlier admissions made by the respondent during the course of making the call for an ambulance. The complainant has declined to provide a statement. I accept that, at the very least, the ruling substantially weakens the prosecution case. There is, however, a second limb to this test which is “if correct, is likely to lead to abandonment of the prosecution”. In Marshall, the Court held that satisfaction of this limb of the test does not depend on any “subjective belief or intention, still less a positive statement made by the DPP. It is an evaluative question, being one which must be answered by the Court of Appeal having regard to the particular facts and circumstances of the case before it”.[14] [14] R v Marshall [2023] SASCA 105 at [137].

Ratio Decidendi

Legal Principle Established

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