R v B, KM - [2009] SADC 47

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, KM
[2009] SADC 47
Reasons for Ruling of His Honour Judge Millsteed
22 April 2009
CRIMINAL LAW
Accused charged with communicating with a child for a prurient purpose - application by defence to exclude from evidence record of interview by reason of breach of s 74D of the Summary Offences Act 1953 – evidence admitted under s 74E – application to exclude handwriting samples obtained from defendant on grounds of illegality – evidence admitted in exercise of Bunning v Cross discretion.
Criminal Law Consolidation Act 1935 s 63B(3)(b); Summary Offences Act 1953 s 79A, s 79A(1), s 79A(3), s 74C, s 74D, s 74E, s 81(4)(b); Criminal Law (Forensic Procedures) Act 1998 s 30(1)(b), referred to.
Palmer v The Queen (1998) 193 CLR 1; R v Bankowski (1971) 18 FLR 179; R v Day (2002) 82 SASR 85; R v King & Pitson (No 2) (1998) 199 LSJS 111; R v Blayney (2002) 220 LSJS 102; R v Solomon (2005) 92 SASR 331; R v Mekic (2004) 88 SASR 287; Pollard v The Queen (1992) 176 CLR 177; R v Dunn [2007] SASC 132; Bunning v Cross (1978) 141 CLR 54; R v Amad [1962] VR 545, considered.

R v B, KM
[2009] SADC 47
INTRODUCTION

The defendant, KMB, was convicted by a jury of the offence of Communicating with a Child for a Prurient Purpose contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935. Prior to the empanelment of the jury the defendant applied for orders that the prosecution not be allowed to tender evidence of the defendant’s record of interview with police and samples of the defendant’s handwriting collected by police. Following a voir dire hearing, I admitted the impugned evidence and indicated that I would give written reasons for my ruling.
FACTUAL BACKGROUND
The complainant MO was 10 years old at the time of the alleged offence. The defendant’s wife, LB, is the complainant’s maternal grandmother and the defendant her step-grandfather. On 22 August 2007 the complainant spent the night at the defendant’s home. The prosecution contended that the defendant wrote and gave the complainant a note the following morning. The note stated: “[M] what I want more than anything else in the world, more than money, more than luxury is to make love to you like a man and a woman. I love you”. Later that morning the complainant handed the note, hereinafter referred to as the “M note”, to the Assistant Principal of her primary school. He contacted the Department of Family and Community Services, which in turn informed the police of the complainant’s allegations.
At about 4.30 pm on 23 August 2007, Detective Sergeant P. Weber and Detective Senior Constable A. Newcombe attended the defendant’s residential address. The defendant and his wife were at home at the time. Weber informed the defendant of the complainant’s allegations, placed him under arrest and informed him of his rights under s 79A of the Summary Offences Act 1953 (“the SOA”). The police then seized a computer located in a spare room.
The conversation at the defendant’s home was recorded on a portable video camera (PVC) operated by Newcombe. At all times the PVC was pointed towards the floor. In the result the videotape shows, primarily, the lower legs of the accused and those of the police officers. Weber, who was the only witness to give evidence on the voir dire, suggested that Newcombe might have deliberately avoided filming the defendant’s face because some suspects are reluctant to speak to police when a camera is pointed at them.
Following the events at the house the defendant was conveyed to the Elizabeth Police Station. Newcombe drove the police car. Weber and the defendant sat in the rear seat. During the trip the PVC was positioned on the back seat and pointed towards the front windscreen. It was left switched on and recorded conversation unrelated to the matter under investigation.
Upon arriving at the police station the defendant was taken to an interview room. The defendant assisted Weber to carry some of the computer equipment that had been removed from his home. They were followed by Newcombe who carried the PVC which was still switched on. While they were walking through the car park the batteries in the PVC went flat and the recording stopped.
At about 5.25 pm Weber commenced a formal interview with the defendant in the presence of Newcombe. The defendant’s wife attended the police station a short while later and was present for the balance of the interview. The entire interview was recorded using the standard video equipment installed in police interview rooms.
In examination-in-chief Weber testified that the police did not have any conversation with the defendant relevant to the investigation after the PVC stopped operating in the car park and before the formal interview commenced. The evidence he gave was as follows:
QWas there any conversation in the period between the conclusion of the footage we have seen and the commencement of the footage we haven’t seen.
ANo.
QNo conversation at all ?
ANo conversation relevant to this matter.
QWas there any conversation at all ?
ACould have been.
QWhat was the topic of conversation?
AI have no idea. I notice the accused was carrying the computer for us because we obviously had our hands full (the film from the PVC had been tendered and played during Weber’s evidence). May have asked him to hand it to me, take a seat there, that kind of thing.
The clear effect of Weber’s evidence is that he had no memory of any conversation having taken place with the defendant during the relevant period and that if any conversation did occur it would have been limited to remarks of the type he mentioned. There was no evidence to the contrary.
At the commencement of the formal interview Weber informed the defendant that the batteries in the PVC camera had gone flat and indicated that he intended to videotape their conversation. At that point the defendant remarked: ‘I didn’t say too much on the way here anyway”. Weber responded: “No, no conversation and we have just started that, so … we are complying with the law …”
Weber then proceeded to advise the defendant, again, of his rights under s 79A. The defendant acknowledged that he understood his rights but expressed some uncertainty as to whether he ought to exercise his right to contact a solicitor. The relevant passages are as follows:
QYou might want to cast your mind back to the right I gave you in relation to who can be present right and you have chosen for your wife to be present which is not a problem as far as I am concerned. The other issue is whether or not you want to seek some legal advice before you answer any questions, you are entitled to do that if you want to
AThat’s the issue that I have never been in this situation before and I don’t know whether I should or shouldn’t or
QI can’t give you legal advice clearly, that’s just not my position to do that, all I can say to you is that I am investigating a criminal offence o.k. and you’re the suspect in relation to that matter, that’s the reason that you’ve have been detained and brought here and given rights as a detained person alright. You have got the right to speak to a solicitor o.k. and get some advice or to have one present during this interview, that’s your right whether you choose to avail yourself of that is a matter entirely for you, I can’t advise you about it alright. If you don’t have a solicitor or know of one, then we can get hold of the legal services commission after hours number or whatever and they will give you some advice on the phone, we can do that, so between now and when time your wife arrives its probably a good idea for you to think about what you want to do in relation to that and let me know as soon as possible. If you have decided that you want to do it, tell me right now and we can make that happen while we are waiting for your wife
AO.k.
S/C Newcombe
QI will actually go downstairs and see if she’s
D/S Weber
QIf you would please, and it’s [L] isn’t it
AYa [L]
QDo you want me to run through with you the rights again just so that your clear because I know sometimes we say them and it just goes over there head, I am happy to do that if you want to.
AI have the right to have somebody present, to have a lawyer present, the right not to answer questions is there anything else
QYep to make a phone call to make somebody know where you are. Your wife knows where you are, if there was somebody else you want to advise them that you were here, you can do that
AThat’s good
QAs I said to you before at the end of this process if you are charged with an offence you are entitled to apply for release on bail, alright
AWould that be then the time that I need the lawyer
QNo
ANo I do know what I have been accused of because [L] said something about a note handed in at school or and supposing I was supposed to have given it to her but that is part of the interview process so it’s not that, ya of as if I need legal advice I don’t really know because I don’t really know the full story as to what happened so, until I find that out then I can’t really access whether what’s going on
QAs you said before I can’t give you advice
AI know you can’t
QBecause if I say, you should, it just doesn’t work
AThat’s right
QIf its any assistance to you I can tell you on most occasion solicitors advise clients not to answer any questions, if that is of any help to you, that has been my experience
A(indecipherable)
QThat is a matter for you, that’s true and certainly I don’t have any intention of conducting a further interview somewhere down the track, it’s not my intention to do that, so I will go through the process now, if you choose not to answer questions which is your lawful right then I certainly don’t have any intentions of asking the same questions again at a later time, we will just leave it at that. Bear in mind that it’s part of that right that your not obliged to answer any questions that also means that you can choose to answer some and not others, there is nothing wrong with that, that is entirely up to you, so you can answer none, some or not others or all the questions, it’s entirely up to you o.k., just so you are clear in your mind about that, and as I said
AJust a confusion in your mind as to what it is all about so
QThat is your right, the bottom line is that I am quite happy to tell you the allegations are, what I am investigating, what the offence is o.k. and put all that to you, you can hear all that and it’s entirely up to you whether you choose to tell me anything about it, the phone is right here if you want I can get hold of the after hours legal services commission and they will put you through to an on duty lawyer or whatever they are and they can give you some legal advice over the phone, so we can do that if you want.
AO.k. Legal rights over the phone will only confuse me anyway so to have a lawyer here, it will have to be a lawyer I would know of whatever
QMy general experience is you can’t say with any certainty how long they will take to come or whether they are available to come and sit in on an interview. Certainly if you went down that road and someone said we can in an hour, that is not a problem, all we do is stop the recording equipment and put you down in an area in the cells where you can wait and we just get on with some other things until they arrive and then we would start again, and that’s what we do, so unless you ask you don’t know, I can’t say with any certainty, generally legal services commission will give you advice on the phone, often they are not available after hours at a drop of a hat to come out, sometimes they are unless you have got a solicitor or your own firm that you have engaged or had dealing with, it’s hard, ………………… read my mind about that.
AWould I be DNA
QYep everybody gets DNA these days.
Weber then obtained from the defendant his personal details and confirmation that he had been informed of his s 79A rights when arrested at his home. The interview continued as follows:
QDo you understand the rights that I gave you, do you need me to go through them again
ANo bit I get a chance to talk now, I just wanted to say that I have been offered a lawyer but I am really confused whether I need it or not, would you think that I would need a lawyer or apparently we have to find one that we know otherwise we can get phone advice, now I don’t know if that lawyer that [W] used that time
The defendant’s wife
AWe don’t really know a lawyer
The defendant
ABasically … Sorry ... Detective Weber said that if we do that it will only prolong the process anyway and I want to get this sorted out, so I have sort of gone no
The defendant’s wife
ACan we get one afterwards
D/S Weber
QWell you can, the way it works is really quite simple, at the top point of arrest we are obliged to tell people, especially if you are going to do an interview like this, we are obliged to tell people that they can have a friend, relative or a lawyer present whilst we do the interview. O.k. we have done that part, what we also say to people is o.k. you may not want a lawyer to be here but you just might want to get some legal advice before we start. Clearly I can’t be any more open than that, what we are investigating is a criminal offence, [K] is a suspect in relation to that, which ultimately means that he could be charged with a criminal offence and have to go to court o.k.
The defendant’s wife
AThen we will need a lawyer
D/S Weber
QThen you will definitely need a lawyer when you go to court, I mean that is generally the process and I have already explained to him that my experience is being that most of the time the legal advice that lawyers give is don’t answer any questions o.k. so if that helps that’s fine, I said it’s only a phone call away
The defendant’s wife
AWe have got nothing to hide
The defendant
AIt would get cleared up if I just shut up
D/S Weber
QIt is a matter for you to decide so if you are happy in your own mind about that and clearly it’s important that you understand, you don’t have to answer the questions and I think I mentioned just before [L] arrived to you that you can answer none of the questions, some of the questions, all of the questions it’s entirely up to you o.k. Are you happy with that
AYep, right let’s go
I find that despite the defendant expressing some uncertainty as to whether he should contact a solicitor he eventually agreed to forego that right and proceeded to voluntarily answer questions. Hence his statement “Yep, right let’s go”.
Following this exchange the defendant was shown the note that the complainant handed to the Assistant Principal and asked if he had written it. He replied: “absolutely not, it looks like my handwriting, its all spelt correct but I completely deny it”.
Weber then proceeded to cross-examine the defendant as to why the complainant would have fabricated her allegations in breach of the principles expressed by the High Court in Palmer v The Queen (1998) 193 CLR 1. Weber also indicated that he did not believe the defendant and suggested that it might be in his best interests to admit that he wrote the M note. These remarks amounted to unfair and improper cross-examination: see R v Bankowski (1971) 18 FLR 179 at 182; R v Amad [1962] VR 545.
If I had been called upon to make a ruling I would have exercised my discretion to exclude this part of the interview because its reception would have been unfair to the defendant. However, on the voir dire, Mr Preston, counsel for the prosecution, properly conceded the point and agreed to edit the relevant passages from the videotape.
Following what I will refer to as the “unfair part of the interview”, the balance of the interview was taken up with Weber advising the defendant of his intention to collect samples of handwriting from him, giving the defendant instructions on what he should write and the defendant responding to those instructions. After the samples of handwriting were obtained from the defendant the formal interview was terminated.
The defendant was then taken to the cells where he was charged and subsequently released on police bail.
Later that evening Weber and Newcombe returned to the defendant’s home to search for additional samples of his handwriting. They located a handwritten note in the spare room from which they had earlier removed the computer. The note was addressed to “Greg”. The author wrote that it was from “[K] and [LB]”.
It is not in dispute that the samples of handwriting collected from the defendant during the formal interview on 27 August 2007 were unlawfully obtained. The power of the police to obtain such samples is contained in s 81(4) of the SOA. Pursuant to this provision where a person is in lawful custody on a charge of committing an offence a police officer may, if the officer believes on reasonable grounds that it is necessary to do so for the purpose of identifying that person or identifying that person as the person who committed an offence, request that person to supply a sample of his or her handwriting. However, a police officer may not exercise the power for the purpose of identifying a person in lawful custody as the person who committed an offence unless (a) the person has been charged with an offence or (b) the police officer is acting upon the authorisation of a magistrate given under s 81(4)(b).
In the present case the defendant had been arrested and, thus, was in lawful custody at the time the samples were collected. However he had not been charged with any offence. That did not occur until he was taken to the cells. Furthermore, no order had been obtained from a magistrate authorising collection of the samples pursuant to s 81(4)(b).
On 29 November 2007 Weber, after realising his error, applied to a magistrate for authorisation to obtain further handwriting samples from the defendant. The application was supported by an affidavit from Weber wherein he stated:
In preparing further documents for an upcoming trial I reviewed s 81 of the Summary Offences Act and became aware that the authority to obtain the handwriting sample, unlike DNA, is only conferred after the suspect has been charged. As a result of this technical error I hereby make application to the court for an order to obtain a further sample of [KMB’s] handwriting. It is intended that this handwriting will be submitted for examination so that evidence admissible in court can be obtained.
It should be observed that in making the application Weber did not identify the source of power upon which he relied. The magistrate proceeded to make a written order, purportedly pursuant to s 30(1)(b) of the Criminal Law (Forensic Procedures) Act 1998 (“the 1998 Act”), permitting Weber to obtain further handwriting samples from the defendant.
Weber subsequently contacted the defendant’s solicitor and explained that he had obtained an authorisation from a magistrate to obtain further handwriting samples due to the earlier irregularity. He requested the solicitor to arrange for the defendant to attend the Elizabeth Police Station for that purpose. On 19 December 2007 the defendant attended the police station and Weber collected the additional samples.

There is no dispute that the order made by the magistrate on 29 November 2007 was a nullity. Section 30(1)(b) of the 1998 Act empowered a court to authorise the taking of fingerprints from a suspect and the taking of material for the purpose of obtaining a DNA profile from a suspect. Neither that provision nor any other provision in the 1998 Act authorised the collection of handwriting samples from a suspect. Furthermore, at the time the magistrate made his order the 1998 Act was no longer in force and had been replaced by the Criminal Law (Forensic Procedures) Act 2007 (“the 2007 Act”). The 2007 Act, like its predecessor, made no provision for the collection of handwriting samples from a suspect.
The only power available to the magistrate to authorise the collection of handwriting samples was that contained in s 81(4)(b) of the SOA. However, that power could not have been invoked because the defendant was not in lawful custody at the time the application was made. It follows that the samples collected from the defendant on 19 December 2007 were unlawfully obtained.
The samples obtained from the defendant on 27 August 2007 and 19 December 2007, were examined by Ms Elizabeth Ockleshaw, a handwriting expert employed at the Forensic Science Centre. Ms Ockleshaw compared the samples with the handwriting on the M note and the handwriting on the note addressed to Greg. Ms Ockleshaw formed the opinion that the defendant was the author of both notes.
DEFENCE APPLICATIONS
Part 17 – Summary Offences Act
The defendant contended that evidence of the formal interview at the police station should be excluded because the police breached the requirements of Part 17 of the SOA: first, by failing to properly videotape the conversation at the defendant’s home and second, by failing to create a written record of conversations that occurred between the police and the defendant after the PVC stopped operating in the car park and before the formal interview began and which should have been read out aloud during the formal interview.
The legislative scheme
Section 74D of the SOA prescribes the requirements that must be complied with by a police officer when he or she proposes to interview a person suspected of having committed an indictable offence. First, if it is reasonably practicable to record the interview on videotape that must be done. If it is not reasonably practicable to videotape the interview but it is reasonably practicable to record it on audiotape that must be done. If neither device is reasonably available to be used then the officer should make a written record of the interview at the time of the interview or as soon as practicable after the interview. The written record must be read out aloud to the suspect as soon as practicable in a video-recorded interview.
Section 74C defines an interview, for the purposes of Part 17, to include (a) a conversation or (b) part of a conversation or (c) a series of conversations. Whether multiple conversations will constitute a series of conversations depends on the circumstances and their proximity and subject matter: R v Day (2002) 82 SASR 85 per Perry J at [14]-[15].
The policy of the legislation is clear. As Gray J observed in R v Day (2002) 82 SASR 85 at [48]:
The amending legislation was intended to reduce the likelihood of disputes about the accuracy and reliability of evidence at trial and enable the courts to assess the accuracy and reliability of evidence at trial and enable the courts to assess what was said, why it was said and what was meant. It was intended to reduce interview times, increase the number of guilty pleas, provide an earlier indication of guilty pleas, result in fewer police officers being required to attend court and result in shorter and more focused trials and fewer appeals.
Gray J went on to say (at [50]):
The amending legislation sought to balance two conflicting interests – the thorough investigation of crime by police which often leads to the questioning of suspects and the police’s duty to treat suspects fairly. The legislation recognised that the technology existed and was relatively inexpensive, simple to operate, portable, reliable and secure. The electronic recording of police interviews was seen as the single most reliable form of corroboration. It protects the suspect from any abuse of police powers and protects the police from unjustified allegations by suspects.
Pursuant to s 74E evidence of an interview is inadmissible unless the police have complied with the terms of s 74D or the court is satisfied that the interests of justice require the admission of the evidence despite non-compliance. The onus falls on the prosecution to satisfy the court that the interests of justice require admission under s 74E.
In R v Day (above) Perry J discussed the factors that a court should consider. His Honour said (at [26]):
In determining whether it is in the interests of justice to admit evidence obtained in circumstances where there has been a non-compliance with the Division, the answer to the questions whether non-compliance has been deliberate, or the product of a reckless disregard of the statutory provisions, or is inadvertent or otherwise excusable, will be relevant. Other factors will also be relevant: for example, the cogency of the evidence, whether the content of relevant conversations is disputed, and in the case of a series of conversations, whether or not only part of the series is infected by the non-compliance.
Failure to properly videotape conversation at the house
Mr White, counsel for the defendant argued that the videotape of the conversation at the house when the defendant was arrested was, for all practical purposes, no better than an audiotape. Accordingly, there had been a failure to comply with the requirements of s 74D in relation to the recording of that conversation. Because the conversation at the house and the formal interview constituted a series of conversations amounting to an “interview”, evidence of that entire interview was inadmissible.
Clearly, the legislation regards videotaping as the best method of recording an interview. It is meant to provide a “total recording of the event” enabling the judge on a voir dire, or the jury on the trial, to assess the real merits of the evidence: see R v Day (above) per Gray J at [50]. Obviously it is better to see, as well as hear, conversations between the accused and the police. A video recording serves to narrow debate about such frequent issues as oppression or nervousness or any other state of mind that might impair the reliability of an accused person’s admissions: R v King & Pitson (No 2) (1998) 199 LSJS 111 per Cox J at 114.
I accept Mr White’s submission that the video recording of the conversation at the house was no better than an audio recording. Having regard to the mischief the legislation was introduced to address, I am satisfied that the recording fails to comply with the requirements of s 74D. Of course, the extent to which a video camera may be able to capture interaction between a suspect and the police will depend upon such factors as the nature of the location where the conversation occurred and the number of police officers involved in questioning the suspect. But in the present case Newcombe’s ability to film the defendant and Weber speaking to one another was not restricted in any way. I am satisfied that Newcombe deliberately avoided filming the defendant because she believed that he might decline to speak. Such a concern does not justify the recording technique she employed. If the defendant chose not to speak that was his right.
Despite the breach I am satisfied that the interests of justice require the admission of the conversation at the house and the formal interview. There is no unfairness to the defendant in admitting both conversations. Their contents are not in dispute: see R v Blayney (2002) 220 LSJS 102 and R v Solomon (2005) 92 SASR 331 at [38]. Furthermore, there is no evidence that the police officers were aware that the method of recording which was employed breached s 74D. On the contrary, the impression I gained from Weber’s evidence is that he believed that it complied with the requirements of the legislation. In that regard it is relevant to observe that this is the first case, as far as I am aware, where this method of videotaping a conversation has been judicially considered and criticised.
Even if this breach of s 74D warranted exclusion of the conversation at the house, there would be no sound basis for excluding the formal interview as well. The discretion to admit may be exercised in relation to part of a series of conversations: R v Solomon (above) at [38]. Here the formal interview was not infected by non-compliance (see R v Day (above) at [26] per Perry J) and, as I have already emphasised, its accuracy was not in issue.
Failure to record conversation
Mr White further argued that the formal interview should be excluded because the police failed to record conversation between the police and the defendant that occurred after the PVC stopped operating and before the formal interview began. As I understood Mr White’s argument the police were obliged to create a written record of the conversation and to read it out aloud during the formal interview (s 74D(1)(c)). Because the conversation and the formal interview amounted to a “series of conversations” constituting an “interview” for the purposes of s 74D non-compliance warranted exclusion of both conversations.
There is no substance in this argument. As earlier observed Weber said that he had no memory of any conversation with the defendant having occurred during the relevant period. He conceded that it was possible that he may have invited the defendant to take a seat in the interview room and to hand him the computer equipment the defendant had carried from the car.
Even if Weber had made such remarks they would not have amounted to an “interview” under s 74D. The remarks were not directed at eliciting information from the defendant about the matter under investigation: see R v Mekic (2004) 88 SASR 287 at [29] (Gray J). Nor did they result in the defendant volunteering any relevant information: compare R v Smith (2003) 228 LSJS 262.
Furthermore, if such remarks had been made by Weber and, contrary to what I have found, amounted to “part of a series of conversations”, I would regard a failure to create a written record of the remarks to be a trivial breach of s 74D and exercise my discretion to admit them into evidence as well as the formal interview.
The defendant’s right to contact a solicitor
The defendant further objected to the admissibility of the formal interview on grounds of alleged unfairness and police impropriety. In particular, it was argued that the police should not have proceeded with the interview after the defendant expressed uncertainty as to whether he should exercise his right to contact a solicitor. It was further contended that the entire interview was inadmissible due to that portion of the interview containing unfair and improper questioning which the prosecution had agreed not to lead.
This argument must be rejected. Section 79A(1) prescribes certain rights that a suspect has upon arrest. They include the right to have a solicitor, relative or friend present during any interrogation or investigation to which the person is subjected while in custody. Pursuant to s 79A(3) a police officer must, as soon as is reasonably practicable after the apprehension of a person inform that person of his or her rights under subsection (1). It is well settled that once a suspect has been given these statutory rights the suspect must be given a reasonable opportunity to avail himself or herself of those rights: see Pollard v The Queen (1992) 176 CLR 177.
In the present case the police discharged their obligations under s 79A. Both at the defendant’s home and later during the formal interview Weber informed the defendant of his s 79A rights, including his right to contact a solicitor. There was no obligation on police to defer further questioning unless he expressly indicated a wish to contact a solicitor: see Pollard v R (above) at 438 per Mc Hugh J. The defendant never did that. On the contrary, I am satisfied, as I stated earlier, that after expressing uncertainty as to whether he should contact a solicitor the defendant agreed to forgo that right (“Yep, right let’s go”). In the circumstances there was nothing unfair or improper with the police continuing the interview. The defendant had a choice and chose to proceed with the interview without speaking to a lawyer.
Unfair questions
Mr White argued that the entire formal interview should be excluded because of the unfair part of the interview. I reject this argument. The unfair part of the interview was a discrete section of questioning. It did not in any way affect or contaminate what was said before or after: compare R v Dunn [2007] SASC 132 per Nyland J. Severance of the impugned passages was entirely proper and could not have given rise to any unfairness to the defendant. Indeed, what was admitted into evidence comprised denials by the defendant of the complainant’s allegations.
The handwriting samples
The defendant applied for exclusion of the handwriting samples collected from him on 27 August 2007 and 19 December 2007. It was submitted that they should be excluded, in the exercise of my discretion, on the ground that they had been unlawfully obtained.
Such an exercise of discretion requires consideration of the competing policy considerations discussed in Bunning v Cross (1978) 141 CLR 54, namely the public need to bring to conviction those who commit criminal offences and the public interest in the protection of the individual from unlawful and unfair treatment.
In their joint judgment Stephen and Aickin JJ (at 78-80) identified several factors relevant to the exercise of the discretion in that case. A consideration of those factors has led me to conclude that the handwriting samples collected from the defendant on 27 August 2007 should not be excluded in the exercise of my discretion.
First, it is clear that the ‘real evil’ at which the discretion to exclude unlawfully obtained evidence is directed, is the deliberate or reckless disregard of the law by those whose duty is to enforce it: Bunning v Cross (1978) 141 CLR 54 at 78; R v Pollard (1992) 176 CLR 177 per Deane J at 204. In the present case, I do not believe that Weber intentionally or recklessly breached the law. Weber had the power to collect the samples once the defendant was taken to the cells and charged – a delay of only a few minutes. If the requirements of s 81(4) had been properly understood by Weber they would no doubt have been complied with. There was nothing to be gained by deliberately or recklessly breaching the legislation. The fact that Weber later applied to the magistrate for an order authorising the collection of further samples serves to show that he wanted to comply with the law.
Furthermore, the samples collected by Weber were highly probative. They formed the basis of Ms Ockleshaw’s handwriting comparison work, the results of which strongly corroborated the complainant’s allegations. Moreover, the nature of the illegality did not affect the cogency or reliability of the handwriting samples. If Weber had complied with the legislation the consequences would have been exactly the same from the defendant’s point of view.
For these reasons I declined to exclude the handwriting samples collected from the defendant on 27 August 2007.
On the voir dire, Mr Preston intimated that if I admitted the samples obtained on 27 August 2007 the prosecution would not seek to tender the further samples collected on 19 December 2007. Accordingly, I was not called upon to rule on the admissibility of those further samples. Nevertheless, it is fair to say that if I had been required to give a ruling I would have admitted them for essentially the same reasons.
The note addressed to Greg
The final item of evidence the defendant sought to have excluded was the note addressed to “Greg”. It was submitted (a) that the provenance of the note could not be established to be that of the defendant and (b) that Ms Ockleshaw’s opinion that the note was written by the same person who wrote the M note was not relevant.
There is no substance in either point. It was open to the jury to compare the handwriting on the note with samples of handwriting collected from the defendant by police and conclude that they were similar. It was further open to the jury to infer from those similarities and the fact that the note was found in a spare room of the defendant’s home that he wrote it. As it turned out the provenance of the note addressed to Greg did not become an issue in the trial. The defendant gave evidence and admitted that he wrote it.
The relevance of the note addressed to Greg was twofold. First, it broadened the base of samples of the defendant’s handwriting that could be relied upon by Ms Ockleshaw for her comparison work. But more significantly, in my view, the fact that Ms Ockleshaw correctly found that the defendant had written the note addressed to Greg was relevant to the jury’s evaluation of the reliability of her opinion that the defendant also wrote the M note. In other words, when considering the defence contention that Ms Ockleshaw had erred in finding that the defendant wrote the M note, the jury were entitled to bear in mind that she had undoubtedly correctly identified his handwriting on the note addressed to Greg.
Conclusion
It was for the reasons expressed above that I admitted the impugned evidence.