R v Baltensperger - [2004] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BALTENSPERGER
Reasons for Ruling of His Honour Judge Smith
28 June 2004
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - GENERALLY
Accused charged with five counts of rape - accused declined to answer questions during course of formal interview - accused later however made admissions whilst being fingerprinted and in the lead up to a forensic examination - no separate warnings given at the time of the later two conversations - application to exclude on the basis of those conversations being unfairly obtained and being more prejudicial than probative - held evidence of conversation should be admitted.
Summary Offences Act s74D, referred to.
R v Collins (1976) 12 SASR 498; R v Lee (1950) 82 CLR 133; Wendo v The Queen (1963) 109 CLR 559; Van Der Meer v The Queen (1988) 82 ALR 10; Cleland v The Queen (1982) 151 CLR 1; R v Swaffield (1998) 192 CLR 159; R v Lobban (2000) 77 SASR 24; R v Crooks (2001) 2 QdR 541, considered.

R v BALTENSPERGER
[2004] SADC 95
CRIMINAL – RULING
JUDGE DAVID SMITH

On the 5^th August 2003, upon his arraignment, Anthony Baltensperger, pleaded not guilty to five counts of rape. Prior to the empanelling of a jury there was a hearing on the voir dire in which the accused sought to have excluded certain Crown evidence in the exercise of the unfairness discretion. I declined to exclude the evidence and I now provide my reasons for doing so.
In addition to the declarations evidence on the voir dire was given by Senior Constable Mark Shilton, Detective Senior Constable Alison Bee and the accused. The application pursuant to Rule 9 sought the exclusion of seven pieces of evidence. The evidence which was the subject of paragraphs 1 to 3 of the Rule 9 application was the subject of my ruling immediately before the empanelling of the jury. The application the subject of paragraph 4 was withdrawn by the defence. The application the subject of paragraph 5 was the subject of argument later in the trial and I ruled to exclude the proposed evidence of the Crown, namely the evidence of Michael Hocking and Jason Davidson. The evidence the subject of paragraphs 6, namely the finding of the cannabis at the premises of the accused was conceded by the Crown and whilst the evidence the subject of paragraph 7 was left in abeyance it was, as I recall, not pursued by the defence in the end result.
Accordingly, the active part of the Rule 9 application was as follows:
1.That the record of conversation said to have occurred with Constable Shilton at 10.55am in the course of fingerprinting of the accused (statement Shelton 5.9 – 6.1) be excluded on the following basis:
1.1The applicant has previously been given his rights earlier at his home address. At that time he was not asked if he wished to exercise any of those rights.
1.2Subsequently at the Murray Bridge Police Station the applicant read through those arrest rights. Again he was not asked if he wished to exercise any of those rights.
1.3Detective Bee then speaks to the applicant regarding a telephone call to his employer.
1.4At 9.10am the applicant is taken to the cell area.
1.5Detective Bee returns to the Murray Bridge Police Station for the purpose of speaking with the applicant on videotape commencing 10.29am and concluding 10.39am. At this stage the applicant exercised his right to silence. (See statement Detective Bee at 8.5 and following).
1.6The applicant was then returned to the cells where he was to be formally charged at 10.46am.
1.7It is at 10.55am when his fingerprints are being taken that the remarks about the gun arise.
1.8The applicant says that this conversation ought be excluded because:
(a)    he has indicated that he wishes to exercise his right to silence;
(b)    the conversation is not recorded;
(c)    because of his state of mind at the time it would be unfair to rely upon these remarks.
This is an order sought in the exercise of the discretion of the trial judge.
2.The applicant further seeks that part of his statement to Detective Bee at 11.54am be excluded “I have never raped anyone in my life, but now I have, some of it wasn’t even like that”. (See statement of Bee at 10.1).
The applicant maintains that this statement should be excluded for the following reasons:
2.1The applicant has previously exercised a right to silence.
2.2The remarks have not been subject to audio or videotaping.
2.3The interpretation of the punctuation in the remarks is that of Detective Bee and not necessarily that of the applicant.
2.4The remark is ambiguous and more prejudicial than probative.
3.The applicant further seeks that conversation between himself and Detective Bee in relation to the firearm (statement of Bee 10.5 and following) be excluded. The applicant refers to 1 above.”
The accused’s application amounts to a contention that in the exercise of the Court’s discretion this evidence should be excluded on the basis that it is unfair to the accused (ie more prejudicial than probative).
The onus is upon the accused to establish, on the balance of probabilities, facts which justify the exercise of the discretion in his favour (see R v Collins (1976) 12 SASR 498 at 308-9: R v Lee (1950) 82 CLR 133: Wendo v The Queen (1963) 109 CLR 559).
Circumstances revealed by the declarations and the evidence given on the voir dire
At about 7.35 am on Monday the 22^nd April 2002 Constable Mark Shilton and Constable Agostino stopped the accused’s white panel van on Mannum Road and arrested him for the multiple rape of Ms SF. He was there given his rights and conveyed to the Murray Bridge Police Station.
At 10.28 am Detective Senior Constable Alison Bee, who was the officer in charge of the investigation, in company with Constable Shilton conducted the first of two video recorded interviews of the accused. She said this took place at about 10.29 am on that Monday, the 22^nd April 2002. In the course of the interview the accused declined to answer questions as was his right. He was told by Detective Bee that he would be charged with four counts of rape and one of unlawful detention. He was duly charged in the Murray Bridge Police Station. At about 10.55 am, again at the Murray Bridge Police Station, Constable Shilton took the accused for fingerprinting. Whilst the fingerprinting was being done Constable Shilton said that the accused had a conversation with him and Shilton recounted the conversation in the following terms:
Accused said ‘This is what you get for trying to help someone’.
Shilton said ‘I don’t know anything about it, I wasn’t there, it was only you and her’.
Shilton said that the accused appeared nervous. He said he was on edge, his eyes were glassed over and though Shilton could not say that tears were actually welling up he said that “It could possibly happen. He looked upset and it could break out into a teary stage”. According to Shilton the conversation proceeded as follows:
“He said: ‘I don’t know where this gun come from, I don’t have a gun.’
Shilton said:             ‘I don’t know what is being said.’
The accused said:      ‘If I had a gun, don’t you think I would use it?’
Shilton said:             ‘I don’t know.’
The accused said:     ‘If I had a gun there I would probably have used it.’
Shilton said:             ‘Just because a gun is mentioned doesn’t mean it is automatically used.’
The accused said:      ‘Mmm.’”
That was the end of what I have called the ‘fingerprinting conversation’. Shilton said he went upstairs from the charge area and made a note of the conversation, then photocopied his notebook and gave a photocopy to Detective Bee.
Later at about 11.49 am Detective Bee removed the accused from his cell at the Murray Bridge Police Station and took him to the interview room at the Murray Bridge Police Station for the purpose of explaining to him about the forensic procedure which was about to take place. She said that the following conversation took place between her and the accused. She said that in particular, as she was explaining to him what the forensic procedure was all about he said
“Why, I’ve been charged, haven’t I?”
Detective Bee said “You’ve been accused of those offences. We now have to prove it beyond reasonable doubt?”
The accused said      “I will just go to court and plead guilty or not guilty.
Detective Bee said    “Well, that’s up to you, are you suggesting you will plead guilty?”
The accused said      “Well, I did it, so, yeah”.
Detective Bee did not make any response to that comment and the accused then added:
“I’ve never raped anyone in my life but now I have, some of it wasn’t even like that”.
Detective Bee said that she immediately made notes of that short what I have called ‘forensic procedure conversation’.
Detective Bee said that she then conducted a second video recorded interview in order to put both the Shilton ‘fingerprinting conversation’ and her ‘forensic procedure conversation’ to the accused for his comment on video. She said that she embarked upon that course because it was her obligation to do so pursuant to s74D of the Summary Offences Act.
This second video recorded interview took place at 11.54 am. She again warned the accused that he was not obliged to say anything if he didn’t want to but that the recording equipment was activated and would record his answers, she put to him the ‘fingerprinting conversation’ alleged by Constable Shilton to which he responded “Something like that was said and some of it I don’t think I said”. In respect of her ‘forensic procedure conversation’ of a few minutes earlier the accused said in respect of that “Mmm” and then later “No comment”.
In his evidence on the voir dire the accused said that before he had the ‘fingerprinting conversation’ with Constable Shilton a policeman approached him in the police station and said “I think you had a gun” to which the accused said he responded “Shows how much you know”. It was the Crown Case as to the use of the gun, that no-one at this point in time had mentioned the gun in the accused’s presence. So the fact that he volunteered it was incriminating bearing in mind his denial that he threatened Ms SF with a gun. The accused was not able to identify the police officer whom he alleged informed him that there was an allegation as to the use of a gun.
As to the conversation alleged by Constable Shilton, he said, inter alia, “I don’t know where the gun comes from”. Further he said that he told Shilton “If I had a gun there I’d probably would have used it wouldn’t I?” Further he disagreed with the conversation alleged by Detective Bee and, in particular, said that he did not say “I’ve never raped anyone in my life, but now I have. Some of it wasn’t even like that”, but rather said “I’ve never raped anyone in my life, but now I have according to her and sometimes it wasn’t even like that”.
The arguments
The accused by his counsel, Mr Stokes, sought to have the above two conversations, namely the ‘fingerprinting conversation’ and the ‘forensic procedure conversation’ excluded and necessarily the video recorded interview with Detective Bee also excluded on the grounds set out in the Rule 9 application as expanded upon in oral argument before me. In essence the argument was that having already in a formal way indicated his intention not to answer questions was unfair of the officers to countenance any further conversation and in particular it would be unfair to admit it in evidence against him.
The Crown submitted that the accused’s comments to Constable Shilton at the time of the fingerprinting and to Detective Alison Bee at the beginning of the in the course of the prelude to the forensic procedure were freely and voluntarily given. The Crown argued that the accused had demonstrated a wish to comment and indeed the conversations showed that he was prepared specifically not to comment when he felt inclined to do so. Importantly, contended the Crown, the accused was aware of his right to remain silent and from time to time when he felt inclined to do so, exercised it.
Ruling
I accept the evidence of the two police officers in preference to that of the accused. Their evidence was both credible and reliable. To the contrary, the accused’s evidence was neither.
Firstly, there is no doubt that each of the fingerprinting conversation and the forensic procedure conversation was voluntary. What the accused said was in the exercise of a free choice by him to speak or remain silent (see Van Der Meer v The Queen (1988) 82 ALR 10 at 16 per Mason CJ). Therefore the statements are admissible (see R v Lee (supra): Cleland v The Queen (1982) 151 CLR 1 at 18-19). The question then arises whether or not in the exercise of the unfairness discretion the conversations as deposed to by the police officers should be admitted against the accused?
Both conversations coupled with the failure by the accused to challenge them in the second video recorded interview with Detective Bee amount to admissions by the accused. There is a somewhat qualified admission of rape and as indicated above the fact of his mention of the gun was arguably incriminating.
The issue is whether or not to receive this evidence would be unfair to the accused in the sense that the trial would be unfair and there would be a perceptible risk of a miscarriage of justice.
For the exercise of this unfairness discretion I am required to have regard to all the relevant circumstances, and in particular, in order to ensure a fair trial balance any unfairness to the accused by allowing the conversations against the public interest in ensuring that admissible evidence be agitated in court to ensure that persons who have committed crimes are convicted and punished (see R v Swaffield (1998) 192 CLR 159 and see in particular R v Lobban (2000) 77 SASR 24 per Martin J at 35-50).
The content of the conversations was clearly probative. The unfairness could arise only from the fact that they followed in the wake of the accused’s earlier exercising the right of silence. In all the circumstances there was no police impropriety involved in the two conversations.
I turn to the arguments of the defence.
The fact that the accused in the first video recorded interview exercised his right of silence is not a bar to later admissions being admitted into evidence. Rather, it is a matter of fairness as to whether or not what he later said should or should not be excluded (R v Crooks (2001) 2 QdR 541).
In this case, the accused was advised of his right of silence at the point of arrest and was further warned in the first video recorded interview. He obviously digested the warning and declined to answer questions at that first interview. It could not be said that any unfairness arose from him not being aware of his rights. In the second recorded video interview he did not challenge, as he did in the voir dire hearing, what was put by Detective Bee as to the two conversations, except to the limited extent she has indicated. Indeed, the accused refused to submit to the forensic procedure and a magistrates order was required.
The ‘fingerprinting conversation’ was recorded by Constable Shilton within minutes of it occurring. The ‘forensic procedure conversation’ was noted by Detective Bee “there and then”. So I do not accept that the record of the conversations could have been materially inaccurate. Further, there was no evidence which convinced me that the accused’s state of mind was such that, by itself, rendered what he said unreliable. Finally, what the accused said was quite clear and unambiguous.
Conclusion
So considering all the relevant circumstances and in particular the considerations of principle elaborated upon in Swaffield and Lobban, in the exercise of my discretion I declined to exclude the evidence.