R v Anderson, Wanganeen and Weetra No. DCCRM-02-342

[2003] SADC 105

R v ANDERSON, WANGANEEN AND WEETRA
[2003] SADC 105

Judge Burley
Criminal

1. On the first day of the trial of this matter, before the jury was empanelled, the accused Wanganeen made an application to have certain evidence excluded. Initially the application referred to the “Declaration Statement of Justine van Hout dated 28th November [2001]”. In the course of that statement Ms van Hout, a police officer, referred to taking a statement from the accused Wanganeen some time after 12.44 am on 17 October 2001. The conversation concluded at 1.05 am on that day. The content of the conversation was recorded in her notebook. Essentially, the conversation between the police officer and the accused Wanganeen dealt with the police officer informing the accused that he was under arrest and informing him of his rights as required by Section 79A(3) of the Summary Offences Act 1953.

2. It became apparent during the course of submissions that the Crown did not intend to adduce evidence of this conversation through the police officer van Hout because she was overseas and would not be called as a witness.  However, Mr Snopek, counsel for the Director, indicated that he would seek to adduce as evidence a subsequent record of interview between the police officers and the accused Wanganeen which took place later on 17 October 2001 and which was recorded by audio tape.  The fact that the subsequent conversation was recorded by audio tape was specifically at the request of the accused Wanganeen whose solicitor was with him at the time of the subsequent interview. 

3. At the commencement of the interview recorded by audio tape, Constable van Hout read to the accused notes of the conversation that she had earlier with him.  Mr Snopek indicated that he would in due course be seeking to tender evidence of the entire interview.

4. Mr Richards, counsel for Wanganeen, then sought to amend the Rule 9 application to have evidence of the earlier conversation excluded.  That application was not opposed and leave was granted.

5. On 8 July 2003 I announced my ruling in relation to the amended application and indicated that I would publish reasons at a later date.  I made an order excluding the evidence referred to in the amended application.  These are my reasons for so ruling.

6. Mr Richards submitted that the earlier conversation which was recorded in Constable van Hout’s notebook was not conducted in accordance with the requirements of Section 74D of the Summary Offences Act 1953 and as such, it was not open to the Director to lead evidence of the fact that the conversation was subsequently read to the accused at a time when that interview was recorded by audio tape. Mr Richards submitted that the earlier conversation should not have been recorded merely by the making of notes in a notebook. He submitted that the accused should have been taken to a place where there was audio recording equipment available so that the conversation could be recorded by use of that equipment. I mention that ordinarily the complaint might be that the interview was not recorded by video tape but that is not applicable in the circumstances of this case because it is common ground that the accused, on legal advice, requested that the subsequent interview not be recorded on video tape but rather by audio tape.

7. In order to determine the soundness of Mr Richards’ submission, I think it is necessary to draw the distinction between a conversation between a police officer and a suspect which constitutes an interview as defined in Section 74C of the Act and a conversation between a police officer and a suspect where the police officer discharges the obligation imposed by Section 79A(3) of the Act to inform the suspect of his or her rights. In the latter case, I do not consider that such a conversation is an interview as defined in Section 74C of the Act and consequently the requirements of Section 74D of the Act do not have to be met. I have come to that conclusion largely because, to hold otherwise, would create an unnecessary tension between the requirements of Section 79A(3) of the Act and the requirements of Section 74D of the Act. In addition, the fact that a police officer has informed a suspect of his or her rights, of itself, would not normally be admissible evidence in the trial of the matter because the advising of a suspect of his or her rights does not go to, either directly or indirectly, the elements of the offences with which the suspect is subsequently charged. Having said that, I accept that evidence of advising a suspect of his or her rights may be admissible on a given voir dire application but I do not consider that that possibility requires the conclusion that a conversation consisting of a police officer informing a suspect of his or her rights as required by Section 79A(3) of the Act must be conducted in accordance with the obligations imposed by Section 74D of the Act.

8. My conclusion that Section 74D of the Act does not apply in the circumstances referred to is confined to a conversation where only the fact that the suspect is informed of his or her rights is dealt with in the conversation. If the police officer asks further questions in relation to the alleged offences, the conversation may well then become one which attracts the provisions of Section 74D of the Act.

9. It is apparent that, in the subsequent interview, which was recorded by audio tape, Constable van Hout thought she was required to read back her notes taken in relation to the earlier conversation so as to comply with Section 74D(1)(c)(ii) of the Act. She was obviously of the view that the earlier conversation she had with the accused Wanganeen was a conversation to which Section 74D applied. For the reasons given above, I consider that she was wrong in that view and that it was not therefore necessary for her at the subsequent interview which was recorded on audio tape to read back the earlier conversation.

10. In light of these conclusions, it seems to me that the question of whether or not the Director ought to be permitted to adduce evidence of the reading back of the earlier conversation as part of the subsequent record of interview between police officers and the accused Wanganeen is to be determined simply by the question of whether or not such evidence is relevant at the trial.  The mere fact that a suspect has been advised of his or her rights does not, in my view, constitute relevant evidence.  It is only if, during the course of that conversation, an admission were made by the suspect that that part of the conversation may become relevant as an admission against interest on the part of the suspect.  Having carefully considered the content of the earlier conversation set out both in the witness statement of Constable van Hout and in the transcript of the record of interview which was subsequently undertaken, I cannot see that there is any relevant admission made by the accused Wanganeen during the course of his earlier conversation with Constable van Hout and for that reason I do not consider that the content of the earlier conversation is relevant.  The only possible part of the conversation that may constitute an admission on the part of Wanganeen was his statement (after he had been informed that he was under arrest for suspicion of committing an aggravated serious criminal trespass): “I will plead not guilty to it anyway, I know I wasn’t in their yard”.  I have no means of knowing on this application whether or not that might potentially consist of an admission on the part of the accused Wanganeen.  There was no oral evidence called on the voir dire and the only documentation put before me was the transcript of the subsequent record of interview and a copy of the witness statement of Constable van Hout.  I would only be guessing as to whether or not the statement attributed to the accused Wanganeen just referred to might potentially constitute an admission on his part and thereby be admissible.

11. In light of the above analysis I have reached the conclusion that the earlier conversation between Constable van Hout and the accused Wanganeen consisted of no more than a discharge by Constable van Hout of her duty to inform the accused Wanganeen of his rights and that as such did not attract the provisions of Section 74D of the Act. As such, the conversation was not admissible because it was not relevant to the charges set out in the information.

12. It must be emphasised that the conclusions I have reached in relation to this application do not detract from the requirement that before police officers interview a suspect, the suspect be cautioned in relation to his or her rights to remain silent, to have a solicitor present and so on. Ordinarily it would be prudent to advise a suspect of those rights at the commencement of any interview to which Section 74D applies even if prior to that time, for example, immediately upon arrest, the suspect is advised of his or her rights. I have not dealt with such a case on this application. The point at issue has not been whether or not the suspect was advised of his rights at the commencement of an interview. Rather, the question at issue has been whether or not the reading back to the accused Wanganeen of the content of a previous conversation was admissible. That is quite a different question.

13. For these reasons I ruled on 8 July 2003 that evidence of the earlier conversation set out in the record of interview that subsequently took place should be excluded.