Police v Hunt

[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 accorded the rights prescribed by s 79A of the Summary Offences Act 1953 (SA); and that the admissions would otherwise operate unfairly and to the prejudice of the respondent.

Pursuant to s 42(1a)(b) of the Magistrates Court Act 1991 (SA), the appellant contended that the Magistrate’s decision to exclude the admissions was attended by a multitude of errors, and warranted appellate intervention on the basis that that decision substantially weakened the basis of the prosecution case and, if correct, was likely to lead to abandonment of the charge. Those errors advanced by the appellant consisted of: the erroneous conclusion that the admissions were involuntarily given, in circumstances where the respondent was repeatedly cautioned that he did not need to answer Brevet Sergeant Batty’s questions and not sufficiently intoxicated so as to be incapable of deciding whether to answer those questions; the erroneous conclusion that the respondent was placed under de facto or actual arrest by Brevet Sergeant Batty at the time of making the admissions, in circumstances where the respondent was repeatedly told that he was free to go if he so wished; the exercise of the Magistrate’s discretion to exclude the admissions in the absence of a cogent reason for doing so; and the inadequacy of the Magistrate’s reasons on the issues agitated by the parties.

Held, allowing the appeal:

1. Insofar as the Magistrate’s decision substantially weakened the prosecution’s case, by excluding the majority of evidence relied upon thereby, and deprived the prosecution of evidence sufficient to answer a potential claim of self-defence, the threshold requirements in s 42(1a)(b) of the Magistrates Court Act 1991 (SA) had been satisfied.

2.      There was nothing in Brevet Sergeant Batty’s conduct or approach to the respondent that indicated that the respondent’s will had been overborne in making the admissions. While an admission may be found to be involuntary where there has been an inducement, or some threat, or some form of oppressive conduct, the adoption of a non-confrontational, welfare-focused approach to interviewing a person suspected of having committed a crime does not deprive that person of the ability to exercise a free choice to speak or be silent.

3.      There was nothing in Brevet Sergeant Batty’s conduct or approach to the respondent that diminished the successive cautions given thereto. In this regard, there is no support for the proposition that the effect of a clearly articulated caution may be undermined by a police officer acting in a respectful and compassionate manner.

4.      In order for intoxication to render an admission involuntary, the maker of the admission must be so intoxicated that he or she is incapable of deciding whether, and how, to answer questions asked of him or her. On the evidence adduced in this case, there was nothing to suggest that the respondent was so intoxicated at the time of making the admissions as to have done so involuntarily.

5.      An inquiry into whether a person is under de facto arrest is an objective one, in the sense that the task is to assess what a reasonable person in the particular circumstance of the suspect would have inferred from the conduct of police. It does not, however, follow that every detention or interference with a person’s liberty by a police officer involves a de facto arrest, even where a person reluctantly accedes to a police officer’s requests or where the police officer would have exercised the power of arrest in any event. To the extent that the Magistrate found that Brevet Sergeant Batty’s conduct conveyed that the respondent had no genuine choice as to whether to accompany him or participate in a formal interview, the Magistrate had erred.

6.      There was no evidentiary foundation for the Magistrate’s finding that there had been an actual arrest executed at the respondent’s residence. The Magistrate was, thus, in this regard, in error.

7.      Other than the suggestion that there was a de facto arrest, there was no other basis upon which the Magistrate could have exercised her discretion to decline to admit the admissions into evidence. Accordingly, the exercise of the Magistrate’s discretion had miscarried.

8.      While, in light of the fact that the Magistrates Court is a court of summary jurisdiction, a short succinct statement of the essential process by which a magistrate has reached his or her decision will be sufficient, and a Magistrate’s reasons ought not to be read with an eye finely attuned for detail, it remains an important part of a Magistrate’s duty to state the facts found and the legal principles applied to those facts, for the purposes of reaching a final or interlocutory decision. To the extent that, inter alia, the Magistrate had not engaged with the parties’ submissions at first-instance, the reasons provided thereby were inadequate.

Criminal Law Consolidation Act 1935 (SA) s 20(4); Criminal Procedure Act 1921 (SA) s 157(3); Evidence Act 1929 (SA) s 13BB; Magistrates Court Act 1991 (SA) s 42(1a)(b); Summary Offences Act 1953 (SA) s 75, s 79A; Joint Criminal Rules 2022 (SA) r 191.1, referred to.

Acuthan v Coates (1986) 6 NSWLR 472; Allison v Police [2005] SASC 447; Bae v The Queen (2020) 135 SASR 522; Boyle (a Pseudonym) v The Queen [2022] SASCA 50; Cleland v The Queen (1982) 151 CLR 1; Collins v R (1980) 31 ALR 257; Cornelius v The King (1936) 55 CLR 235; DL v The Queen (2018) 226 CLR 1; Donges v Ratcliffe [1975] 1 NSWLR 501; Douglass v The Queen (2012) 86 ALJR 1086; Fleming v The Queen (1998) 197 CLR 250; Holmes v Western Australia [2023] WASCA 26; House v The King (1936) 55 CLR 499; HSA v Police (2013) 116 SASR 547; Lowndes v The Queen (1999) 195 CLR 665; Macks v Viscariello (2017) 130 SASR 1; New South Wales v Le [2017] NSWCA 290; Police v Chilton (2014) 120 SASR 32; Police v Kriticos [2016] SASC 28; R v Conley (1982) 30 SASR 226; R v Keyte (2000) 78 SASR 68; R v Lavery (No 2) (1978) 19 SASR 515; R v Lee (1950) 82 CLR 133; R v Marshall [2023] SASCA 105; R v Ricciardi (2017) 128 SASR 571; R v Smith (1992) 167 LSJS 271; R v Sumpton [2014] NSWSC 1432; R v Suppiah [2018] SASCFC 11; R v Swaffield (1998) 192 CLR 159; R v Wilton (1982) 28 SASR 362; Rowland v Police (2001) 79 SASR 569; Toth v New South Wales [2023] NSWCA 206 ; Wainohu v New South Wales (2011) 243 CLR 181; Western Australia v Silich (2011) 43 WAR 285; Wittwer v Police [2004] SASC 226, applied.

POLICE v HUNT
[2024] SASC 107

Magistrates Appeal:   Criminal

McDONALD J.

1. The respondent has been charged with one count of committing an assault causing harm.[1]  That offence is alleged to have been aggravated by the use of a weapon and because the victim of the offence was the respondent’s domestic partner. 

   [1] In contravention of s 20(4) of the Criminal Law Consolidation Act 1935 (SA).

2. 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

3. 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.

4. 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.

5. 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. 

6. 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.

7. 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.

8. 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

9. The evidence was that the reference to “21’ing him” was code for arresting the respondent.  Brevet Sergeant Batty said that he did not agree with the suggestion of his supervisor to arrest him because he had not “got the story yet”.[2]  He provided an explanation for why he made the comment that “they’ll want the books thrown”.  He said “I meant well, obviously I’d been in SAPOL for 38 years, and I knew that they like to throw the book at you, if a police officer’s involved”.[3]

   [2]     Transcript of Proceedings, Police v Hunt (Magistrates Court of South Australia, MCCRM-22-016176, Magistrate Browne, 30 June 2023) (‘30 June 2023 T’) at 10.

   [3]     30 June 2023 T30.

10. During the course of the conversation, Brevet Sergeant Batty turned his body worn camera off for a period of time, in accordance with police general orders.  Whilst the body worn camera was off, Brevet Sergeant Batty also made a call to the Duty Inspector.  The reason that he did so was because, as the respondent was a serving member of SAPOL, it was necessary for him to advise the chain of command of the incident.  Brevet Sergeant Batty sought clarification from the Inspector as to the correct procedure to adopt when dealing with a serving officer.  The advice that he received was to treat the situation like any normal job that he attended.  It was Brevet Sergeant Batty’s evidence that there was no discussion with the Inspector about arresting the respondent, because at that stage he still did not “know the full story”.[4]

    [4]     30 June 2023 T31.

11. When the camera was turned back on, it recorded the Duty Inspector saying, “And yeah we’ll make sure IIS is aware of all of that at the right time and all that sort of stuff” and “Once you know more details…and yeah keep, keep his name off job and all that sort of stuff”.

12. At the conclusion of the conversation, an unrelated person, “Wayne”, approached Brevet Sergeant Batty in the police car.  There appears to have been some confusion, which involved Brevet Sergeant Batty inviting Wayne to sit in the police car before realising that the person that he was speaking to was not the respondent but another member of the public, who appears to have had some mental health issues.  After Brevet Sergeant Batty managed to deal with Wayne, and send him away, he invited the respondent to sit in the car.

13. Immediately upon the respondent getting into the police vehicle, Brevet Sergeant Batty alerted him to the fact that the body worn camera was on, and then provided the police caution.  When asked about why he had cautioned the respondent at this point, he replied:[5]

    It’s a normal procedure.  I am going to ask some questions in relation to it.  Anything that he states, and he is not obliged to answer any questions, will be recorded and may be used in Court – evidence.

    [5]     30 June 2023 T13.

14. It is of note that Brevet Sergeant Batty did not immediately proceed to ask questions about what had occurred, but rather checked in on the respondent’s welfare.  When asked why he did this, Brevet Sergeant Batty explained that he does this with everyone that he deals with because, as a police officer, he had lost too many friends and colleagues through “bad times” and he was concerned for the respondent’s welfare.

15. There was then a brief exchange about where the respondent worked and who his supervisor was.  In that context, Brevet Sergeant Batty raised getting in touch with the employee assistance services.  The evidence was that this is the section that provides counselling or assistance to police officers with mental health issues.  When asked why he referred to that section, Brevet Sergeant Batty gave the following answer:[6]

    Like I said now, I’ve lost too many friends and colleagues with suicide through my career and mental health is an important thing for me.  I have been – utilised those services over the years myself.  To me mental health is paramount and quite close to the heart, I am concerned with people’s welfare.

    [6]     30 June 2023 T14.

16. Brevet Sergeant Batty then addressed the events that led up to his attendance.  He told the respondent that he did not have the full story from his wife, but that he was aware of a report that the respondent had rung in, and said that he had thrown a glass at his wife.  The respondent agreed with that proposition, and Brevet Sergeant Batty asked what sort of glass it was.  The respondent agreed with Brevet Sergeant Batty’s suggestion that it was a spirit tumbler.  When asked about what caused this to occur, he said “an afternoon and evening of argument and disagreement”.

17. At that point Brevet Sergeant Batty said “Alright, I’ll… we’ll get up to Mt  Barker” and then immediately reminded the respondent that he was under caution, but at that stage not under arrest.

18. When asked why he had reminded the respondent that he was under caution, Brevet Sergeant Batty said, “Again just to reaffirm that the caution still exists, that he is under caution that anything he says is going to be recorded and it may be used in evidence”.[7]

    [7]     30 June 2023 T15.

19. When asked why he had advised the respondent that he was not under arrest, Brevet Sergeant Batty said that it was because he had not yet formed an opinion as to whether to arrest.  He further elaborated:[8]

    Well at that stage, like – I hadn’t received the full story of the actual incident or I haven’t spoken to the alleged victim.  So I hadn’t got a story, a full complete picture basically.  It was still part of the investigation stage.

    [8]     30 June 2023 T15.

20. That answer reasonably reflected the circumstances that had unfolded up to that time.  Although Brevet Sergeant Batty had a hearsay account from the alleged victim, that account had not yet been confirmed with her.  Also, whilst the respondent appeared to be accepting what was being put to him about the information police had received, it was hardly a fulsome account.  Given the circumstances, in which the respondent posed no threat and was cooperative with the investigation, it would arguably have been heavy handed to have arrested him at this stage without more information, or at least, clarity around the information that the police had received.

1. Before leaving, Brevet Sergeant Batty reminded the respondent that everything was being recorded on video, asked him whether he was alright or needed anything, and asked him whether everything (i.e., the caravan) was secure. Brevet Sergeant Batty then called into the police communications centre and conveyed information about his movements.  Over the radio he said:

   Roger, just advising I’m mobile up to Mount Barker with the other party of this 106 and female is being conveyed by ambos, they were taken up to Mt Barker, but they never advised me.

   And then:

   Roger, just mobile up to Mt Barker.

2. Brevet Sergeant Batty explained that, had he placed the respondent under arrest, the information that he would have provided to the communications centre would have been different:[9]

   I’d advise communications that I’ve got one on board, been arrested for X whatever offence, etc, etc, and to advise VIXON 30 up here because I have to meet VIXON 30 up here for the charging process at Mount Barker.

   [9]     30 June 2023 T17.

3. He explained that this is necessary to put the on-duty sergeant on notice, to give them the “heads up” to meet them at the cells.  Nothing of that nature occurred here.

4. En route to the Mount Barker Police Station, there was the type of small talk that would be expected between an investigating officer and someone being conveyed to a police station, in circumstances in which they were being compliant and co-operative.  Here, as both men were police officers, the conservation related to where they had each been stationed, people whom they may know in common, the shift that Brevet Sergeant Batty was working, and other issues related to working in the police force.  The conversation was benign and innocuous in nature. 

5. From watching the body worn camera footage, it is apparent that there are lengthy breaks during which no one speaks.  Much of the conversation was instigated by the respondent.  The clear impression that I gained was that these were attempts by the respondent to break the awkward silence between the two men travelling together in the police vehicle. 

6. As they approached the police station, the respondent made a comment to the effect, “Hopefully your camera’s, oh it’s still there. Fuck it”, and then said “I’ve got nothing to hide”.

7. When they arrived at the police station, Brevet Sergeant Batty made an enquiry as to where the interview rooms were.  He took the respondent to the interview room and joked, “I’ll just, bear with me.  You’ll be alright there, I trust you”.  When asked whether he would do this if someone were under arrest, he said that he would not.  He explained that he would take them to the charge counter to be processed and then to the cells.

8. Once in the interview room, the recording equipment was activated, and, almost immediately, Brevet Sergeant Batty reminded the respondent that he was not under arrest; that he was there of his own free will; and that he could leave at any time.  Brevet Sergeant Batty agreed that those three propositions were an accurate reflection of the state of affairs at that time. 

9. The respondent was then reminded of the caution that he had been given at 9.54 pm that evening, and he was cautioned again (effectively for the third time). Brevet Sergeant Batty proceeded to confirm with the respondent the information that he had already received, namely: that police were called as a consequence of a telephone call that the respondent made; it was in relation to a domestic argument; and that his wife had received a blow to the head as a result of a glass being thrown at her.  The respondent agreed with each of those propositions.

10. At this point, Brevet Sergeant Batty again repeated the caution.  By this time the respondent had been cautioned four times in just over an hour.  The following exchange then occurred:

    GBahh you stated that…the wife received a blow to the head by a glass being thrown?

    THyeah

    GBagain, I’m just going to ask some questions in relation to it. Again you’re not obliged to answer them but if you do it will be used in evidence

    THyeah

    GBcan you tell me in your words, what happened tonight?

    THyeah… you know… it was a long brewing argument sort of thing, and culminated in something my wife said and I can’t even remember what it was… but I picked up a glass and threw it at her

    GBalright, when you say “picked up a glass” ehh… where were you sitting? In the caravan?

    THyeah in the caravan, yeah

    GBjust at the dining table?

    THyeah

    GBsitting opposite?

    THyeah

    GBand the glass you mentioned was like a spirit tumbler? Or…

    THyeah… yeah… yeah…

    GBand… and did you, I know it seems silly, but how did you pick it up, and throw it at her?

    TH(inaudible)… actually picked it up…

    GBpicked up with your right hand?

    THyeah

    GByeah, threw it, and then hit her…

    THangry

    GBhit her in the… head?

    THyeah

    GBand then what happened then?

    THaahhh she was injured….

    GBalright… and the… and that’s when you called police

    THyeah

    GBobviously… ehh… you stayed (inaudible)… oh you can’t remember now what actually happened because it’s been a while. Obviously, both being consuming alcohol?

    TH yeah, yeah, yeah

    GBroughly, how much (inaudible)

    THohh… (inaudible) three beers… at the yeah….ehh… the brewery up the road there…ehh

    GBthe Bridge hotel?

    THyeah… no, no the ehh…

    GBah the micro brewery…

    THyes!... yeah. I have three beers there, and had a couple more… and she had a bottle of wine…yeah

    GBeehh… obviously on my arrival there, the ambulance was there, and observed a small laceration…

    THyeah

    GBto the right side of the forehead with a bit of an egg on it..ehrmm I haven’t spoken to your wife about it… at this stage, anything you want to say? Anything further in relation to…the incident

    THyeah

    GBlike I said…

    THit’s ah… yeah… yeah… it’s a heat at the moment thing and I sincerely wish I hadn’t done it and its horrendous… that I have done it (inaudible)

    GByep, obviously… as a result of this…

    THyeah

    GBeermm I advise you that you’re going to be arrested for assault (inaudible)… you know assault and domestic violence, do you understand that?

    THyeah

11. Brevet Sergeant Batty was asked why, when he commenced this part of the interview, he asked the respondent to tell him “in his own words” what had happened.  He responded:[10]

    It was part of the training when I was in the CIB, cognitive interviewing.  It’s always best to – I feel personally, to get the person’s story in their own words to try and establish what actually happened.

    [10]   30 June 2023 T24.

12. He was also asked why at the conclusion of this exchange he arrested the respondent.  Brevet Sergeant Batty explained:[11]

    I arrested because I got the story in the defendant’s words, so an offence had been committed.  I advised the defendant he was under arrest.

    [11]   30 June 2023 T24.

13. During cross-examination, it was put to Brevet Sergeant Batty that, by the end of this exchange, he had little more information than he had at Langhorne Creek.  The implicit suggestion was that Brevet Sergeant Batty was disingenuous in his evidence that there had been a change that warranted the arrest of the respondent, as compared to the situation at the scene. 

14. That cross-examination, however, missed the point, in that it was not only about the information that was available to Brevet Sergeant Batty, but about the form of that information.  The initial information provided to Brevet Sergeant Batty was in an unconfirmed hearsay form.  Whilst there had been a brief exchange between Brevet Sergeant Batty and the respondent at the scene, it could not be said that there were clear and unequivocal admissions absent any further communication.

15. 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

16. 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.

    …

17. The appellant relies on the second limb of the threshold test on the basis that “the judgment destroys or substantially weakens the prosecution case”. 

18. 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].

19. 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. 

20. I accept that, at the very least, the ruling substantially weakens the prosecution case. 

21. There is, however, a second limb to this test which is “if correct, is likely to lead to abandonment of the prosecution”. 

22. 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].

23. The Court went on to observe:[15]

    Needless to say, very few incidental evidentiary or procedural rulings will be of such critical importance to a prosecution case that they are likely to lead to the abandonment of the prosecution.  Some examples have, however, earlier been given of interlocutory decisions that might be described as an “interlocutory judgment” which may have that effect.

    [15] Ibid at [138].

24. The examples that were given were:[16]

    1.Decisions made about whether there is a case to answer.

    2.Decisions made about whether a search warrant is valid, at least where the prosecution depends upon the evidence obtained pursuant to the exercise of the search warrant.

    3.Decisions made about the admissibility of what is alleged to be an admission or a voluntary confession, again where the prosecution depends upon the admission of the evidence.

    [16] Ibid at [133].

25. Given that the first limb of the test can be satisfied by the prosecution on the basis that the judgment “substantially weakens the basis of the prosecution case”, it cannot be that the second limb of the test requires the prosecution to establish the inevitability that the prosecution will be abandoned. 

26. It was submitted by the respondent that there is, in fact, other evidence upon which the prosecution can rely to present a case before the court.  On that basis, it was suggested that this appeal is premature because, in the event that the prosecution is unsuccessful, the appellant will still have the opportunity to appeal the acquittal and at that time ventilate the issues currently before this Court. 

27. The evidence that the respondent submitted was still available to the appellant are the admissions made in the call to emergency services and the option of compelling the alleged victim to give evidence. 

28. In order to assess the weight of that submission, it is necessary to consider the nature and extent of the admissions made during the emergency call.  They consist of an admission that the respondent’s wife was injured to the forehead, as a consequence of the respondent throwing a glass at her, and that this had occurred five minutes prior to making the call. 

29. The appellant contended that, whilst this amounts to an admission of the actus reus of the offence, it is incapable of establishing that the act was intentional and unlawful.  I do not accept the submission that the evidence is incapable of proving that the act was intentional.  To “throw” connotes the engagement of a deliberate and intentional act.  That is sufficient to prove that the act was intentional.  The respondent admitted that he threw the glass at his wife. 

30. There is force, however, in the appellant’s submission that the evidence of these brief admissions would be incapable of negating beyond reasonable doubt that the respondent was acting in lawful self-defence should that be raised. 

31. It was suggested by the respondent that it was also open to the prosecution to compel the alleged victim to give evidence.  In submissions, I was told that whilst Ms Macaulay was at the hospital, she made some comments to a police officer that were recorded on his body worn camera.  Whilst there is no evidence before me of what was said, for current purposes, I am prepared to accept that what she said would be sufficient to establish the elements of the offence.

32. In order for that evidence to be admitted, it would be necessary for the prosecution to make an application pursuant to s 13BB of the Evidence Act 1929 (SA). It would be necessary for the prosecution to establish, inter alia, that “the complainant is available, if required, for further examination, cross-examination or re-examination”.[17]  It would therefore be necessary to subpoena Ms Macaulay to give evidence contrary to her very clear wishes.  For the prosecution to do so, in circumstances in which Ms Macaulay could not have made it plainer that she does not wish to give a statement or give evidence against the respondent, would be an exceptional course to adopt.  It would be at odds with the Director of Public Prosecutions’ guidelines that require that all victims of crime be treated with “courtesy, respect and empathy” and that “[s]taff must, as far as possible, conduct themselves and the relevant proceeding in a manner that does not compound the harm, loss or injury that a victim has suffered or that may result in revictimisation”.[18]

    [17]   Evidence Act 1929 (SA) s 13BB(2)(a)(iv).

    [18]   Guideline 12.

33. It is not appropriate that I take into consideration the theoretical possibility that the prosecution could subpoena Ms Macaulay. 

34. Realistically, the only evidence capable of being relied upon by the prosecution, absent the impugned admissions, is the emergency call and observations of Ms Macaulay’s injuries. In those circumstances, in my view, the exclusion of the admissions is “likely to lead to the abandonment of the prosecution”. Accordingly, s 42(1a)(b) has been satisfied.

    The nature of the appeal

35. As mentioned, this appeal is governed by s 42 of the Act. Appeals from a Magistrate to a single Judge of the Supreme Court are by way of rehearing, pursuant to r 191.1 of the Joint Criminal Rules 2022 (SA).

36. In order to interfere with the exercise of a judicial discretion, there must be a demonstrated error of the kind described in House v King.[19]  The approach to be adopted was summarised by White J in Wittwer v Police,[20] in the context of an appeal against sentence:

    The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or it if [sic] has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly. …

    [19] (1936) 55 CLR 499 at 505.

    [20] [2004] SASC 226 at [16].

37. In Police v Kriticos,[21] in the context of an appeal against the exercise of the discretion of a Magistrate to confirm an intervention order, Doyle J discussed the application of the principles:[22]

    … These principles require that an appellate court only interfere in two broad categories of case. First, if it is established that the Judge below has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect him, has mistaken the facts or has not taken into account some material considerations. Secondly, if it is established that the result embodied in the order made is, upon the facts, unreasonable or plainly unjust, such that it can be inferred that there has been a failure properly to exercise the relevant discretion, despite the precise nature or source of that error not being identifiable.

    [21] [2016] SASC 28.

    [22] Ibid at [28].

38. The Court will not interfere merely because it would have exercised the discretion in a different way to the Magistrate.[23]  It is in the very nature of a discretion that different Judges will evaluate the relevant considerations in different ways.  In Police v Chilton,[24] Kourakis CJ made the following observation:[25]

    Over familiarity with the decision in House v The King can at times obscure the strictness of the limited ground for the appellate interference it prescribes.  The grounds on which a discretion can be set aside are analogous to the grounds of judicial review.  Neither the exercise of a judicial discretion, nor the making of an administrative decision, are vitiated by giving a relevant matter less or more weight than the judge before whom the decision is impugned would have given to it.  The Magistrates Court is a Court of Record.  Its judgments are final orders.  They are not provisional opinions subject to the approval of this Court.  The sentences imposed in the Magistrates Court can only be set aside for error in accordance with House v The King.

    The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imaging error in the interstices of the necessarily economic sentencing remarks of busy magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence.  The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King.

    (Footnotes omitted)

    [23]   R v Wilton (1981) 28 SASR 362 at 363; Lowndes v The Queen (1999) 195 CLR 665 at [15].

    [24] (2014) 120 SASR 32.

    [25] Ibid at [18]-[19].

    The Magistrate’s process of reasoning

39. The Magistrate provided brief reasons for her ruling to exclude both the body worn footage capturing the conservation with the respondent at the scene, and the record of interview.

1. After setting out the prosecution case and the defence submissions, the Magistrate provided a summary of the evidence of Brevet Sergeant Batty.  In that context, the Magistrate said the following:[26]

   Batty asked the defendant to get into the police car.  He gave evidence that the defendant was not under arrest.  However, he admitted that the defendant was not allowed to leave and had he done so he would have arrested him.

   [26]   Police v Hunt (Magistrates Court of South Australia, Magistrate Browne, 8 March 2024) (‘Reasons’) at [27].

2. For reasons that will become apparent when I come to deal with the question of de facto arrest, this is not an accurate reflection of the witness’ evidence on this topic and that, at least in part, underpins an erroneous reasoning process engaged in by the Magistrate.

3. The Magistrate then set out her observations of the respondent, as he appeared in the body worn footage and the record of interview.  She noted that this evidence supported a finding that the respondent was intoxicated and that “[t]he communications are of a conversational tone which encourages the defendant to talk to Batty as a colleague and not a suspect”.[27]

   [27] Ibid at [30].

4. The Magistrate then considered some aspects of the evidence relevant to the question of the voluntariness of the admissions and whether there had been a de facto arrest.

5. The Magistrate provided a list of “concerning factors” that she had regard to in relation to the issues of voluntariness and de facto arrest.  These were:[28]

   [28] Ibid at [35]-[43].

   1.The defendant’s level of intoxication;

   2.The familiarity between Batty and defendant denounces the seriousness of the caution;

   3.Batty’s intention to arrest defendant irrespective of the record of interview;

   4.No opportunity to obtain legal advice;

   5.Right to silence is diminished;

   6.Batty’s own log entry indicating defendant was arrested at the scene;

   7.General practice of arrest for similar matters of this type; and

   8.Victim unwilling to provide a statement.

6. Taking those factors into account, the Magistrate found that:[29]

   Having assessed the evidence objectively, I find that any statements made by [the defendant] prior to his arrest rights being read should be excluded.

   To allow the admissions into evidence would mean the prejudicial effect significantly outweighs the probative value.  It would be unfair to the defendant and likely to result in [sic] unsafe and unsatisfactory outcome.

   [29] Ibid at [47]-[48].

   Grounds of Appeal

   Ground 1:  The learned Magistrate erred in that she concluded that the admissions were made involuntarily

7. A confessional statement is not admissible unless it was made voluntarily.[30]  The onus lies upon the prosecution to prove that a confession was voluntary, once the issue is raised by an accused.[31]  The rationale for the exclusionary rule is the combination of the potential unreliability of an involuntary confession and the preservation of the common law privilege against self-incrimination.[32] 

   [30]   Cf Cleland v The Queen (1982) 151 CLR 1 at 18 (Deane J); R v Swaffield (1998) 192 CLR 159 at [10]-[13] (Brennan CJ).

   [31]   See, eg, R v Suppiah [2018] SASCFC 11 at [68] (Blue J, Kourakis CJ agreeing).

   [32]   Cleland v The Queen (1982) 151 CLR 10 at 18 (Deane J).

8. “Voluntary” means that the admission was “made in the exercise of a free choice to speak or be silent”.[33]  It is necessary to consider whether the will of the person making the admission has been overborne.[34]  The focus of the test is not on the propriety of the conduct of the police in conducting the interview, but the effect that it had on the state of mind of the person who made the decision to speak.[35] 

   [33]   R v Lee (1950) 82 CLR 133 at 149 (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ).

   [34]   Collins v R (1980) 31 ALR 257 at 307-309 (Brennan J).

   [35]   Cornelius v The King (1936) 55 CLR 235 at 245-247 (Dixon, Evatt and McTiernan JJ).

9. Commonly, an admission will be found to be involuntary where there has been an inducement or threat or some form of oppressive conduct.[36]  In  HSA v Police,[37] Blue J described that “[t]he general rule is that a confession is not voluntary if the defendant’s will is overborne by coercion in the nature of dress, intimidation, persistent importunity, sustained or undue insistence or pressure, etc”.[38]

   The basis of the Magistrate’s findings that the admissions were involuntary

   [36]   See, eg, R v Sumpton [2014] NSWSC 1432 at [70] (Hamill J).

   [37] (2013) 116 SASR 547.

   [38] Ibid at [87].

10. The Magistrate did not give separate consideration to each of the admissions that were recorded.  That is unfortunate, because they were separate in time and place, and, hence, separate considerations applied.

11. In her reasons, the Magistrate devoted a single paragraph to the topic of voluntariness.  I set that paragraph out in full:[39]

    The circumstances of this matter are unusual in that the treatment of the defendant differs from the treatment of other defendants. When he is conveyed to the police station, he is sitting in the front passenger seat, and he is not formally given his arrest rights. The conversation between Batty and the defendant during the drive to the police station can be described as familiarity between police officers. The defendant is constantly reassured that everything will be alright. Batty is mainly concerned about the defendant’s welfare and mental health. Although the defendant had been cautioned at the scene, the continual friendly conversation between the parties after the caution diminishes the impact of that caution.

    [39] Reasons at [32].

12. The learned Magistrate went on to say:[40]

    Having regard to the authorities and the facts of this case, I find that the conversational tone of Batty induced the defendant to feel at ease and engage in conversation such that when the offending is discussed, it is a continuation of that conversation.

    [40] Ibid at [44].

13. It is unclear from the reasons as to whether this is a reference to the conversation recorded at the scene, or the interview at the police station, or both.  Regardless, the Magistrate appears to be suggesting that, by adopting a non-confrontational, welfare focused approach, Brevet Sergeant Batty created a situation in which the respondent was deprived of the ability to exercise the free choice to speak or be silent.

    The diminution of the caution

14. The “diminution of the caution” appears to be the main basis upon which the Magistrate came to view that the admissions were involuntary.  Although the Magistrate said that she had regard to the authorities, I am not aware of any authority that suggests that the effect of a clearly articulated caution may be undermined by a police officer acting in a respectful and compassionate manner. 

15. During submissions, the respondent suggested that it was open to the Magistrate to find that the focus of Brevet Sergeant Batty on the welfare of the respondent impacted on the effectiveness of the caution.  In order to assess that submission, it is necessary to consider the circumstances in which the respondent found himself.

16. The respondent was a police officer with 38 years’ experience.  It would not be an overstatement to suggest that there would be very few members of the community who would better understand the significance of a caution in the circumstances in which the respondent found himself on that night. 

17. The respondent’s decision to admit to his conduct commenced from the emergency call, when he volunteered that he was responsible for his partner’s injuries.  He had committed himself to that position from that point onward.  His conversation with Brevet Sergeant Batty was a continuation of that call.

18. It is apparent from viewing the body worn footage that, as Brevet Sergeant Batty gave the respondent the caution, the respondent understood what was occurring.  That is unsurprising.  I set out in full the conversation that is said to have “diminished the caution”:

    GBNow just, briefly, just before we go into everything I need to make sure, I need to check on your welfare.

    THYeah.

    GBYou’re alright?

    THI’m all good mate.

    GBAlright.  erh…

    THI’ve had a bit to drink, but I’m all good.

    GBYeah… no that’s alright.  Everything is locked up there?

    THEhh, yes.

    GBOk…erh… now… you’re… where abouts you work?  Ottoway you said.

    THEhh yeah, Port Adelaide, I’m a Brief Quality.

    GBAt Port Adelaide station?

    THEhr, Ottoway I work at…

    GBOhhh Parks.

    THWest…

    GBThe old Parks…

    THParks yeah.

    GBEhh who is your boss, there?

    THSelena Dinning?

    GBOh yeah Selena, yeah.  Now, just to keep you at peace, not everyone knows… anything at this stage… so gonna keep..

    THYeah, yeah, yeah, yeah mate…

    GBAll, all I’ve advised is our, the Mount Barker vixen and the state shift manager.

    THIs that Johnsy?...

    GBI can’t remember who it was…

    THSorry…

    GBErhm… and yeah obviously the protocol and procedure, is our main, our main concern is obviously welfare, so …

    THYes, yes.

    GBObviously, we can get in touch with EAS, etcetera.

    THYeah, yeah.

    GBObviously, I have…

    THSorry mate, it’s… (laughs)…

    GBNo, that’s alright.

19. This is followed by a relatively brief exchange in which the respondent made the first impugned admission:

    THNot what you want on a Thursday night hey mate?

    GBNo, that’s alright as long as you know… yourself and Alicia…

    THOhh… yeah…

    GBNow… I haven’t got the full story from Alicia…

    THYeah.

    GBObviously, they’ve already her up to Mount Barker to get stitches or glue or etc.

    THYeah.

    GBEerrhhm can you… obviously the report is, you rung in…

    THYeah.

    GBAnd it said you’ve thrown a glass…at your wife.

    THYes…yeah.

    GBAnd, what sort of glass was it?

    THOh, a… thing, yeah.

    GBjust a… a spirit tumbler?

    THYeah, yeah (inaudible)

    GBAlright... and… what caused that?

    THOohh… an afternoon and evening of argument and disagreement.

    GBAlright.  I’ll… we’ll get up to Mt Barker.

    THYeah.

20. It is logical that, once the respondent had made those admissions, Brevet Sergeant Batty determined that the appropriate course was to drive to Mount Barker to conduct a further interview in a more controlled and formal environment.  Importantly, at this point, he reminded the respondent that he was under caution and not under arrest.  He said, “So, obviously you’re under caution, you’re not under arrest at this stage”.  They then commenced the drive to the Mount Barker Police Station.

21. Once back at the police station, the respondent was taken into an interview room and the formalities of the interview process were commenced.  This involved Brevet Sergeant Batty advising that the recording equipment had been activated, and established the time, date, and identities of those present in the room. 

22. This is the common manner in which formal police interviews are commenced.  The respondent was asked whether he was aware that the interview was being recorded on video and audio tape.  He was told “Now, at this stage (you understand)[41] that you’re not under arrest and you’re here on your own free will … and you understand you can leave at any time”.

    [41]   Although the words “you understand” do not appear in the transcript, they can be heard in the recording. 

23. From there, Brevet Sergeant Batty reminded the respondent of the caution that he had given to him earlier that night and proceeded to re-caution him by saying, “you’re not obliged to answer them, but anything you do so may be recorded and may be used as evidence.  You understood that?”.  The respondent replied “yes”.  Brevet Sergeant Batty then briefly put the allegations:

    GBalright… and… now obviously tonight, I was called or you called police to… Langhorne Creek where you were camping

    THyep

    GBin relation to… a… domestic argument, is that correct?

    THyeah

    GBahh you stated that… the wife received a blow to the head by a glass being thrown at her?

    THyeah

24. Brevet Sergeant Batty then further cautioned the respondent:

    again, I’m just going to ask some questions in relation to it.  Again you’re not obliged to answer them but if you do so it will be used in evidence.

25. It is at that point that the respondent was invited to explain, in his words, what had happened. 

26. Taking the respondent’s case at its highest, and accepting for the sake of argument that the effect of the earlier caution was “diminished”, it cannot be suggested that, by the time that the respondent was in the interview room, he did not appreciate the significance of his circumstances, such that it can be said that the admissions that followed were involuntary.  It is apparent from watching the video of the interview that the appellant appreciated and understood the seriousness of the process that was being undertaken.

    Intoxication

27. In determining the question of voluntariness, the Magistrate also took into account the fact that the respondent was intoxicated. 

28. It may be that in certain circumstances intoxication, or intoxication in combination with other factors, may result in an admission that is involuntary.  It has been held that, where a person is “just gabbing” through intoxication, or is so intoxicated that they are incapable of making a free choice as to whether to speak or remain silent, then any statement that follows will be involuntary.[42]  It will all depend on the facts and circumstances of the particular defendant.  What is clear, however, is that a person in the position of the respondent must be so intoxicated that he or she is incapable of deciding whether, and how, to answer questions asked of him or her.[43]

    [42]   R v Smith (1992) 167 LSJS 271 at 277 (Perry J).

    [43]   See Western Australia v Silich (2011) 43 WAR 285 at [54] (Martin CJ, Buss JA and Hall J agreeing); Holmes v Western Australia [2023] WASCA 26 at [207] (Buss P, Beech and Vaughan JJA).

29. The Magistrate made the following observations about the respondent’s level of intoxication:[44]

    [44] Reasons at [29].

    Body worn footage and record of interview transcript

    This evidence supports the defence contention that the defendant was intoxicated. The defendant is slurring his words, he struggles to put on his seatbelt and [sic] continually apologising to Batty.

30. Whilst it was open to the Magistrate to rely on the first two considerations in support of a finding that the respondent was intoxicated, it is unclear how the Magistrate could use the fact that the respondent repeatedly apologised as a means to measure his intoxication.  Whilst the respondent apologised to Brevet Sergeant Batty on a number of occasions, it is apparent from the video footage that his apologies were consistent with being embarrassed about having placed a colleague in this situation.  That is, in having to deal with a fellow officer as a potential suspect.  I fail to see (nor does the Magistrate explain) the means by which this evidence can be used to arrive at any finding about the respondent’s level of intoxication. 

31. There was no dispute that the respondent was intoxicated.  The significance of that intoxication will depend on the extent of his intoxication.  The evidence about that came from Brevet Sergeant Batty and the two recordings.

32. Brevet Sergeant Batty was asked a series of questions, appropriately designed to establish that he had significant experience in dealing with members of the public who are under the influence of alcohol.  He was asked a number of questions about his observations of the respondent’s level of intoxication when he first spoke with him at the scene.  The following exchanged then occurred:[45]

    [45]   30 June 2023 T7-8.

    Q.During your service as a police officer what signs or behaviours do you look for when forming an opinion or view as to the level of intoxication of a person.

    A.Obviously speech, slurred speech, blood-shot eyes, unsteady on the feet, how they carry themselves, carriage of the body, body language, and even their conversations, And obviously the smell of liquor. 

    Q.Was the defendant steady on his feet during your initial interaction with him.

    A.Yes, he appeared to be.

    Q.Did the defendant answer your questions easily.

    A.Yes.

    Q.Was the defendant’s speech slurred.

    A.I wouldn’t say so no.

    Q.Did the defendant provide you with coherent responses to your questions, logical responses.

    A.Yes.

    Q.How fast were the defendant’s responses to your questions.

    A.Normal, average reply time.

    Q.Was the defendant swaying side to side whilst you spoke with him.

    A.Just obviously as anyone do[es] when you’re standing there talking, just slight movement but nothing out of the ordinary.

    Q.Could you smell intoxicating liquor on the defendant.

    A.Yes.

    Q.At that stage what was your opinion with regards to the level of intoxication displayed by the defendant.

    A.I’d just say moderately affected.

33. Brevet Sergeant Batty was also asked about his observations of the respondent’s level of intoxication by the time of the interview at the police station.  He said:[46]

    As I stated before you know obviously the time elapsed, he had sobered up or got originally, I’d say moderately and then by the time we got back to Mount Barker obviously he would have went down to the slightly not affected.

    [46]   30 June 2023 T23.

34. Brevet Sergeant Batty was asked whether, during his career as a police officer, he had ever made the decision to decline to interview a person due to their level of intoxication, no doubt to establish that this was a matter that he was conscious of in his dealings with the respondent.  Brevet Sergeant Batty responded that he had, and that he had made this decision on average approximately once a year over 38 years.  He explained the basis on which he had previously made that decision:[47]

    Obviously, if they’re grossly effected [sic] by alcohol they’re not going to understand the questioning.  In the past – you know, like a drink driver, if they’re really grossly effected [sic], I wouldn’t ask any questions.  Some of those times I’ve actually interviewed people the next day once they’ve sobered up, so get a clearer understanding of the line of questioning.

    [47]   30 June 2023 T25.

35. During cross-examination, Brevet Sergeant Batty confirmed that the bases of his opinion that the respondent was moderately intoxicated at the scene were the smell of alcohol and his observations of a slight swaying movement.[48]  When it was suggested to him that it would have been preferable to have delayed the interview given that assessment, Brevet Sergeant Batty disagreed.  There was no challenge to Brevet Sergeant Batty’s evidence about the respondent’s level of intoxication.

    [48]   30 June 2023 T25-26.

36. I have also had the opportunity to watch the two recordings.  There is nothing about the appearance of the respondent that is in any way inconsistent with Brevet Sergeant Batty’s evidence. 

37. In her findings, the Magistrate identified the respondent’s level of intoxication as one of the factors that she took into account in relation to the question of voluntariness.  The Magistrate explained the manner in which she relied upon the respondent’s intoxication in the following terms:[49]

    Intoxication alone does not necessarily amount to exclusion of record of interview.  There is no suggestion that the defendant was too intoxicated to answer questions.  The intoxication of the defendant and its combined effect with the perceived inducement leads to the conclusion of involuntariness.

    [49] Reasons at [46].

38. With respect to the Magistrate, it is difficult to understand precisely what this means.  There was no suggestion of any inducement.  The evidence, at best for the respondent, places his level of intoxication during the first conversation as moderate and during the interview as mild.  This does not fall into the category of cases in which the defendant’s level of intoxication was such, either alone or combined with other factors, as to suggest that he was deprived of his free choice to determine whether to answer questions.

1. In my view, there was no basis in the evidence upon which it was open to the Magistrate to find that the respondent’s conduct in making the admissions was involuntary.  The Magistrate’s reasons, further, reveal errors of principle in reaching the impugned finding. 

2. Ground 1 has been established.

   Ground 2:  The learned Magistrate erred in that she concluded that the admissions were made whilst the defendant was under de facto arrest

3. Pursuant to s 75 of the Summary Offences Act 1953 (SA), a “police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence”. When such an arrest occurs, a person is entitled to the provision of certain rights as set out in s 79A of the Summary Offences Act 1953 (SA). That includes the right to legal representation.

4. In certain circumstances, although no formal words of apprehension or arrest have been used, a consideration of the police officer’s words and conduct may warrant the conclusion that a person has been apprehended or arrested de facto.

5. The inquiry of whether a person is under de facto arrest is an objective one, in the sense that the task is to assess what a reasonable person in the particular circumstance of the suspect would have inferred from the conduct of the police officer.[50]

   [50]   New South Wales v Le [2017] NSWCA 290 at [7] (Basten, Leeming and Payne JJA).

6. In R v Conley,[51] King CJ described the circumstances of a de facto arrest in these terms:

   A person is apprehended for the purpose of ss 75 and 78(1) when he is deprived of his liberty by a police officer irrespective of whether formal words of arrest are used. Frequently a police officer invites or requests a suspect to accompany him to a police station or to some other place for the purpose of pursuing police enquiries and the suspect voluntarily complies. Such an invitation or request does not amount to deprivation of liberty (The Queen v. King, per King J. at pp. 128-129), even though the police officer would have made an arrest if the suspect had not complied and even though the suspect believed that that would be the result of non-compliance. If, however, the circumstances are such that the words uttered, although in form an invitation or request, would in the circumstances convey to a reasonable person that he had no genuine choice as to whether to accompany the police officer, it becomes incumbent upon the police officer to make it clear that the suspect is not under arrest and is free to refuse to accompany him, and, in the absence of such an intimation, the apparent invitation or request may constitute an apprehension.

   (Footnote omitted)

   [51] (1982) 30 SASR 226 at 239-240.

7. It does not follow that every detention or interference with a person’s liberty by a police officer involves a de facto arrest.  It is a matter of fact and degree. In the decision of the New South Wales Court of Appeal in New South Wales v Le,[52] the Court emphasised that an interference with liberty in the form of detention may fall short of arrest or false imprisonment.  The Court explained:[53]

   A person is not detained in the relevant sense if his or her departure from a planned course is voluntary or, if at the request or direction of another person, consensual. Nor will a person be detained in a relevant sense because prevented or delayed in carrying out his or her intended course by the exigencies of everyday events, such as being caught up in a crowd. As explained in Collins v Wilcock:

   “Furthermore, the word ‘detaining’ can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be ‘stopping and detaining’ the latter. There is nothing unlawful in such an act. If a police officer so ‘stops and detains’ another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat, actual or implicit, to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful.”

   (Footnote omitted)

   [52] [2017] NSWCA 290. See also Toth v New South Wales [2023] NSWCA 206 at [50]-[52] (Meagher JA, Payne and White JJA agreeing).

   [53] Ibid at [5].

8. The focus of the test is objective and on the interference of the liberty of the individual.  As was explained by King J (as he then was) in R v Lavery (No 2):[54]  

   A suspect may, voluntarily and without constraint, accede to a police officer’s request to accompany him and, if he does so, there is of course no interference with his liberty. This is so even if he goes reluctantly out of respect for authority or fear that a refusal will be construed as an indication of guilt or some other similar motive. The suspect’s liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer.

   [54] (1978) 19 SASR 515 at 516.

9. It is important, when considering the conduct said to amount to a de facto arrest, to do so in a realistic and practical manner.  As discussed in Bae v The Queen,[55] “[t]he answer to the question as to what constitutes detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements”.

   The Magistrate’s findings on the issue of a de facto arrest

   [55] (2020) 135 SASR 522 at [44] (Kelly J).

10. There is a lack of clarity surrounding whether the Magistrate found that there had been a de facto arrest or whether the respondent had actually been placed under arrest at the scene. 

11. Under the heading “De Facto arrest”, the Magistrate considered the evidence of Brevet Sergeant Batty about whether the respondent was arrested at the scene.  She said:[56]

    Batty gave evidence that the defendant was not arrested at the scene.  However, he was shown a copy of his occurrence log where he manually typed ‘arrested at the scene’.  His explanation was that he always types that, and it is irrelevant.  I reject that evidence.  His contemporaneous notes show that he had arrested the defendant at the scene. 

    [56] Reasons at [33].

12. There are several problems with this paragraph.  The first is that it appears that the Magistrate conflated a de facto arrest with an actual arrest.  Although the paragraph is headed “De Facto arrest”, in the body of the paragraph the Magistrate proceeds to make reference to an actual arrest.  In arriving at that conclusion, the Magistrate relied on a note in the police occurrence log made by Brevet Sergeant Batty which reads “arrested at the scene”.  The Magistrate rejected Brevet Sergeant Batty’s explanation for that entry.[57]  The consequence was that the Magistrate concluded that the respondent had been arrested at the scene.  There was, however, no other evidence of that.  There was nothing that occurred at the scene recorded on the body worn footage that in any way supported or suggested that there was an actual arrest at the scene.  On the respondent’s case, the highest it could be put was that there had been a de facto arrest. 

    [57]   It was Brevet Sergeant Batty’s evidence that this entry was an error. He said “Yeah, well that’s what I’m saying, that’s, I typed that.  If you look at all the others I would say the same even if I wasn’t arrested at the scene. It’s just”.  Transcript of Proceedings, Police v Hunt (Magistrates Court of South Australia. MCCRM-22-016176, Magistrate Browne, 17 November 2023) (‘17 November 2023 T’) at 31.

13. The Magistrate was in error in finding that there was an actual arrest at the scene.  There was no evidentiary foundation for such a finding. 

14. Later in her reasons, the Magistrate returned to the issue of a de facto arrest.  She said:[58]

    On the issue of defacto arrest, I find that Batty’s suspicion that the defendant committed a serious offence had not differed between the caution at the scene and the arrest rights.  On the evidence before me, I find that the defendant was under defacto arrest from the time he entered the police vehicle to the time that he was given his arrest rights.

    [58] Reasons at [45].

15. In contrast to the previous finding that the respondent had been under arrest, at this point the Magistrate appears to come to an alternative view that there was no actual arrest, but a de facto arrest.  The Magistrate does not disclose the basis upon which she arrived at that finding. 

    Was it open to the Magistrate to find that there had been a de facto arrest?

16. The Magistrate found that the de facto arrest commenced at some point after the respondent got into the police vehicle.  As set out previously, in the lead up to that, Brevet Sergeant Batty had permitted Wayne to sit in the vehicle as a response to Wayne knocking on the window, believing it was the respondent.  After asking Wayne to leave, Brevet Sergeant Batty said the following:

    Sorry Trev, do you just want to jump in the car? And get out of the mozzies… sorry I thought it was you knocking on the window… and I said “come in”.

17. To a reasonable person, this request would not, in the circumstances, convey that the respondent had no genuine choice as to whether to accompany Brevet Sergeant Batty.  In particular, the circumstances suggest that the request was made out of convenience to the respondent, who, up until that point, had been standing outside. 

18. Neither the Magistrate nor counsel for the respondent identified any other words or conduct that might have conveyed to the respondent that he was not free to leave.  To the contrary, he was told twice that he could leave if he wished. 

19. It appears that in arriving at the finding that the respondent had been under de facto arrest, the Magistrate relied on an understanding that Brevet Sergeant Batty had “admitted that the defendant was not allowed to leave and had he done so he would have arrested him”.[59]  As alluded to, even assuming this to be sufficient in light of the authorities discussed above, this is not an accurate representation of Brevet Sergeant Batty’s evidence.  In order to explain that, it is necessary to set out Brevet Sergeant Batty’s evidence on this topic in full.

    [59] Reasons at [27].

20. In cross-examination, this topic was first raised in the context of Brevet Sergeant Batty being questioned about cautioning the respondent at the scene.  The following exchange took place:[60]

    [60]   17 November 2023 T10-13.

    Q.Was it the case that if Mr Hunt had refused to come with you, you would have just driven away.

    A.I can’t make that assumption can I – I can’t say what if’s –

    Q.Can I put it to –

    A.- but at the time he didn’t get out of the car and he didn’t leave so didn’t have – I’ll cross that bridge if it had of happened.

    Q.So, let’s put the hypothetical now.

    A.Well, we don’t deal with hypothetical, I’m dealing with facts when I investigate.

    Q.Let me put my question to you Brevet Sergeant.

    A.Mm-hm.

    Q.If at that point in time Mr Hunt had said to you, oh okay I’m not under arrest I’m leaving. You would have placed him under arrest, wouldn’t you.

    A.Well, like I said I don’t know. I can’t make assumptions, I don’t know what – and I shouldn’t be able to make assumptions. My job is not to make assumptions. My job is to investigate the facts and if it came to that, I’ll deal with it at that time. I can’t tell you what I’m going to do.

    Q.If I put it to you that Mr Hunt was not free to leave, that he was always coming to Mt Barker with you, would you disagree with that.

    A.He was in the front seat, he could open the door and leave whenever he wanted to, I’m saying he’s not under arrest.

    Q.And –

    A.And I don’t know, you know, like I said I can’t make assumptions with what if this happened.

    Q.Your evidence is you don’t know what you would do until you are confronted with that situation, with Mr Hunt.

    A.Every situation is different, so I can’t, it’s got no relevance to this matter, at this point in the investigation.

    Q.So, you may have arrested him

    A.May have, may not have.

    Q.What would be the factors you’d consider for not arresting him in that situation.

    A. Well, like I said, that didn’t happen so –

    HER HONOUR:   You still need to –

    Q.That’s not my question.

    HER HONOUR:   - sorry you still need to answer the question.

    A.Well at that stage, well, I can place him under arrest for the purpose of investigating the matter and if it comes out that there’s no offence committed, we can do an unarrest situation. So, at that stage, that’s what would probably – may have happened, or we go back to the positive action, the victim is removed from the scene, we could do a report later or etc. So, there’s many different options that could have happened but in answering your question, if I needed to arrest and then through the interview found out there was no offence, well we go down an unarrest situation which you’d be aware of, the circumstances.

    Q.I’m sorry but I’m not sure you answered my question, my question was, what would the factors be to not arrest him at that stage.

    A.Well, if I arrested him at the scene, if he wanted to leave, I would have issued his arrest rights there and then we would have gone through the whole process.

    Q.So you’ve answered what you would do to arrest him, my question was what other factors you would consider to not arrest him in the circumstances. Well, it was, again, you go on about positive action, it says the victim is removed from the situation. You can report, you don’t have to arrest at every domestic violence.

    A.It is preferred, but it’s not a must. There are circumstances where we do report and there’s circumstances where you arrest. So, your question was, if he wanted to leave, would I have arrested him, yes I would probably arrested him and then I would have issued his arrest rights at that scene.

    Q.So, you agree don’t you that there was no circumstance at that stage in which Mr Hunt was not coming to Mt Barker with you.

    A. No, I’m saying he – he at that time I said he is not under arrest and if he wanted to leave he could have attempted to leave. I don’t know what his thought process was, if he wanted to leave, he would have told me.

    Q.But, as I understand it, your evidence is you would have arrested him if he’d done that and then done unarrest later if that was required.

    A.Well, if I needed.

    Q.Just let me – just let me finish my question. Just let me finish my question. So, your evidence was that you would have arrested him and then if necessary done an unarrest later.

    A.Yeah, that is one of the processes.

    Q.That was your evidence though wasn’t it.

    AI just said, I would have arrested him and I would have issued his arrest rights at the scene and then we would have still investigated the allegations

    Q.Thank you.  If you just want to put MFIP1 to one side, and I think you might have MFIP3 with you, which is the record of interview.

    A.Yeah, MFI3.

    Q.Thank you. Now, I’ll just take you, and I’m not going to do it verbatim, but just take you through, on p.1 there and this is at line 21.  You’ve told Mr Hunt that he is not under arrest and he is here off his own free will.

    A.Yep, that’s what I said.

    Q.And then you say at line 26, you understand you can leave at any time.

    A.Yes.

    Q.Again, if at that point in time he had said to you, okay, I’m leaving, you would have arrested him, wouldn’t you, because nothing’s changed.

    A.Yes.

    Q.So, he wasn’t free to leave at any time was he.

    A.He can leave at any time.

    Q.But you would have arrested him.

    A.Yeah.  Because a part of investigation.

21. The interjection by the Magistrate was unfortunate.  Up until this point the answers of Brevet Sergeant Batty had been responsive and appropriate.  He was being asked to speculate on a hypothetical.  Whilst this was a permissible line of questioning, it was open for the witness to give the responses that he did.  By her interjection, the Magistrate was suggesting that the answers were non-responsive.  That was not the case.  Regardless, the answers of Brevet Sergeant Batty up to that stage went no higher than conceding that it was probable that he would have arrested the respondent, with a series of qualifications wrapped around the answer.  The highpoint for the respondent was the exchange during which Brevet Sergeant Batty agreed that he would have arrested the respondent, then corrected that and said that he was free to leave at any time, and then agreed that he would have arrested him as part of the investigation.

22. Counsel for the respondent subsequently returned to this topic:[61]

    Q.And you’ve already said that had Mr Hunt decided to get out of the car you would’ve arrested him, yes.

    A.I probably would have, yes.

    Q.So he was always going to be arrested from the get go, wasn’t he.

    A.No, no, I can’t say yes or no.

    [61]   17 November 2023 T23.

23. Unfortunately, that was a misrepresentation of Brevet Sergeant Batty’s evidence up to that point and an unfair question.  Even in those circumstances, Brevet Sergeant Batty did not concede that he necessarily would have arrested the respondent. 

24. Counsel for the respondent also cross-examined Brevet Sergeant Batty about aspects of the interview at the police station.  In that context, it was put to Brevet Sergeant Batty that he was always going to arrest the respondent.  He replied:[62] 

    It wasn’t going to be … again it goes back at that time I didn’t know the full story, I just gave … words, interviewed the suspect at the time and then I formed the opinion or arrest or report or -

    [62]   30 November 2023 T22-23.

25. The topic was later revisited in the context of cross-examination about the entry in the occurrence enquiry log of “arrested at scene”.  When it was put to Brevet Sergeant Batty that the reason that he made this entry was because “that was always what was in your mind”, Brevet Sergeant Batty denied that was the case.  He then repeated, in multiple answers, that he disagreed with the suggestion that he had always intended to arrest the respondent.[63]

    [63]   30 November 2023 T32.

26. It is apparent from the totality of this cross examination that the Magistrate elevated the evidence of Brevet Sergeant Batty to something that it was not and there was no basis for a finding that “the defendant was not allowed to leave and had he done so he would have arrested him”. 

27. Even had that been the case, that would not of itself be determinative of whether there had been a de facto arrest.

28. Having considered all of the evidence, it was not open to the Magistrate to come to the view that there had been a de facto arrest.  There was no foundation for such a finding in the evidence. 

29. There was no interference with the liberty of the respondent beyond inviting him to sit in the police car.

30. The fact that the respondent was not deprived of his liberty, and was free to go up until the time of his arrest, is further reinforced by the fact that he was told that he was not under arrest at the outset of the interview. 

31. It was not open to the Magistrate to exclude the evidence on the basis that there had been a de facto arrest. 

32. Ground 2 has been established.

    Ground 3:  The learned Magistrate erred in that she excluded the admissions in the exercise of her discretion

1. Having found that the admissions were voluntary and that there was no arrest or de facto arrest at the scene, there remains the issue of whether there was some other basis upon which it was open to the Magistrate to exercise her discretion to exclude the admissions.

2. In her reasons, the Magistrate came to the following conclusion:[64]

   To allow the admissions into evidence would mean the prejudicial effect significantly outweighs the probative value. It would be unfair to the defendant and likely to result in [sic] unsafe and unsatisfactory outcome.

   [64] Reasons at [48].

3. There has been no suggestion of any “prejudicial effect” on the respondent, so that consideration can be put to one side.  It is also not understood what is meant by the admission of the evidence is “likely to result in unsafe and unsatisfactory outcome”.

4. That leaves the question of whether it would be unfair to the respondent to admit the evidence. 

5. In R v Swaffield,[65] in the context of confessional evidence, the High Court replaced the overlapping public policy and unfairness discretions with a broader overall discretion.  The plurality identified the following approach as appropriate to a consideration of the exclusion of confessional evidence:[66]. 

   … 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.

   [65] (1998) 192 CLR 159.

   [66] Ibid at [91] (Toohey, Gaudron and Gummow JJ).

6. Kirby J also supported a re-expression of the test of admissibility and discretionary exclusion of disputed confessions.  His Honour said:[67]

   This would involve consideration, in turn, of three matters namely whether the confession was voluntary; if so, whether it was reliable; and, if so, whether it should nonetheless be excluded from evidence in the exercise of an overall judicial discretion. This last consideration would permit attention to be given to factors which, in the past, this Court has accepted as relevant. They would include unfairness to the accused; disproportionate prejudice outweighing the probative value of such evidence; and relevant public policy considerations. The last might involve official conduct which was illegal or improper or which would otherwise involve securing the conviction of the accused at too high a price.

   I favour such a re-expression of the tests to be applied. …

   [67] Ibid at [119]-[120].

7. Other than the suggestion that there was a de facto arrest, there was no other basis upon which it was suggested that there were grounds upon which to decline to admit the evidence.  Given that there was no basis upon which it was open to find that there had been a de facto arrest, it was not open to the Magistrate to exercise her discretion to exclude the evidence of either set of admissions.

8. Ground 3 has been established.

   Ground 4:  The learned Magistrate erred in that she failed to provide adequate reasons

9. The remaining ground of appeal relates to the adequacy of the reasons provided by the Magistrate for arriving at her decision. 

10. A “judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”.[68] This applies equally to a Magistrate presiding over a trial and providing reasons for a ruling. The judicial obligation to provide reasons for a decision is important, both for facilitating a party’s right to appeal,[69] and as a matter of public accountability. The parties and public are entitled to know how and why the Court made a particular decision.[70]  A failure to provide adequate reasons amounts to an error of law.

    [68]   Douglass v The Queen (2012) 86 ALJR 1086 at [8] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

    [69]   Fleming v The Queen (1998) 197 CLR 250 at [22] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).

    [70]   R v Keyte (2000) 78 SASR 68 at [43] (Doyle J).

11. If a Judge or Magistrate were not required to give reasons, then an appellate court would not be able to identify whether the Judge or Magistrate correctly applied the relevant principles of law.[71]  In a paper titled “The Judicial Method: Essentials and Inessentials”,[72] the Hon AM Gleeson AC identified the function of the provision of judicial reasons:

    Reasons serve a number of purposes.  They promote good decision-making by requiring a decision-maker to explain and justify an outcome.  They inform a losing party of the reasons for failure.  They allow an appellate court to identify possible error and correct possible injustice.  They inform the public of the way judicial power is exercised.  The adequacy of a statement of reasons for a decision is judged by reference to these purposes.

    [71] Ibid at [38].

    [72]   (2019) 9 The Judicial Review 377 at 384.

12. The adequacy of reasons should be considered on a case-by-case basis because the content and detail of reasons will vary.[73]  However, an appellate court should not have to speculate as to what a Judge or Magistrate might have meant, especially on an important issue.[74]  The adequacy of reasons will depend upon the forensic contest between the parties and an assessment of the issues in the case – including the extent to which they were relied upon by the parties; their bearing upon the elements of the offence; and their significance to the course of the trial. 

    [73]   DL v The Queen (2018) 266 CLR 1 at [32] (Kiefel CJ, Keane and Edelman JJ).

    [74]   Boyle (a Pseudonym) v The Queen [2022] SASCA 50 at [119] (Livesey P, Lovell and Bleby JJA).

13. Reasons for a decision are to be read as whole, and a Judge or Magistrate does not necessarily need to provide lengthy or elaborate decisions.[75] However, that reasoning cannot be satisfied by a bare statement of both of the principles of law applied by a Judge or a Magistrate and the finding of fact made,[76] and reasons will not always be adequate simply because they reveal a chain of reasoning that leads to a conclusion.[77]  What is required is a “careful assessment of all the relevant facts, and where necessary, an explanation as to how the ‘inconvenient’ facts can be put to one side or given little weight”.[78]

    [75]   R v Ricciardi (2017) 128 SASR 571 at [25] (Vanstone J).

    [76]   Fleming v The Queen (1998) 197 CLR 250 at [28] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).

    [77]   Macks v Viscariello (2017) 130 SASR 1 at [523] (Lovell J, Corboy and Slattery AJJ).

    [78] Ibid.

14. It is, however, important to remain cognisant that the Magistrates Court is a court of summary jurisdiction.  In almost all cases, a short succinct statement of the essential process by which a Magistrate has reached his or her decision will be enough.[79]  It is also important not to read a Magistrate’s reasons with an eye finely attuned to error.  It does, however, remain an important part of the Magistrate’s duty to state the facts found and the legal principles applied to those facts, for the purposes of reaching a decision.[80]

    [79]   Rowland v Police (2001) 79 SASR 569 at [30]-[35] (Perry J). See also Allison v Police [2005] SASC 447 at [59] (Perry J).

    [80]   Donges v Ratcliffe [1975] 1 NSWLR 501 at 507 (Rath J).

15. The same considerations apply to the provision of reasons for an “important interlocutory ruling”, particularly on a decision which may impact on whether a prosecution will proceed.[81]  The duty to give reasons does not apply to every interlocutory decision, no matter how minor.  The content and detail of the reasons required will vary according to the jurisdiction of the court, and the particular matter that is the subject of the decision.[82]

    [81]   Wainohu v New South Wales (2011) 243 CLR 181 at [54]-[58] (French CJ, and Kiefel J).

    [82] Ibid at [56].

16. However, where Parliament has seen fit to confer a specific right of appeal which allows for interlocutory appeals, rulings as to admissibility must be sufficiently detailed to allow this Court to discharge its duty to consider any challenge to that decision. 

17. During the course of this judgment, I have raised a number of issues with respect to the reasons provided by the Magistrate.  I do not propose to repeat those matters. 

18. There remain two further aspects of the Magistrate’s reasons that have been raised and should be addressed. These are the failure of the Magistrate to deal with the arguments made by the appellant and the failure by the Magistrate to explain the manner in which her “findings” impacted on, or resulted in the exercise of the discretion to exclude the evidence.

    Arguments made by the appellant

19. At the conclusion of the evidence, both counsel made detailed submissions and provided comprehensive written outlines.  One of the complaints raised by the appellant is that, in her reasons, the Magistrate failed to address many of the arguments raised by the appellant, such that there is no explanation of how the competing arguments of the parties were dealt with.  By way of example, the Magistrate failed to make any reference as to how she factored in the respondent’s experience as a police officer, the impact, if any, on the respondent already having made admissions in the emergency call prior to the arrival of Brevet Sergeant Batty and how the seriousness of the offence was factored into the exercise of the discretion. 

20. Whilst the Magistrate made reference to receiving written submissions of each party, she did not address the arguments that were put forward by the appellant, nor why she rejected the arguments that were advanced. 

21. During the submissions on the appeal in this Court, counsel for the respondent suggested that it may have been that, as a consequence of the extensive submissions provided by counsel in the lower court, that the Magistrate come to the view that more detailed reasons for her decision were not required.

22. Whilst that may be an explanation for the manner in which the matter evolved, the provision of detailed outlines by the parties does not abrogate from the Magistrate’s duty to provide adequate reasons, at least when dealing with the central limbs of the appellant’s arguments.  The Magistrate failed to do so. 

    The list of “findings”

23. The second issue that arises relates to the list of findings arrived at by the Magistrate set out at [64]. Whilst the list identifies relevant topics, it in no way provides any insight into the process of reasoning engaged in by the Magistrate in relation to those topics.

24. From this list it cannot be discerned how or why the Magistrate arrived at her decision and whether she correctly applied the principles of law. 

25. Ground 4 has been established.

26. For the reasons set out above each of the grounds of appeal have been made out.

27. I make the following orders:

    1.The appeal is allowed.

    2.The interlocutory judgment of the Magistrate is set aside.

    3.The respondent is remanded for trial on all admissible evidence before a different Magistrate.