R v Brp (No. 2)rst Rc No. DCCRM-02-627

[2003] SADC 50

R v BRP (No. 2)
[2003] SADC 50

Judge Bishop

Criminal

Reasons for Ruling

In reasons delivered on 24 March 2003 (R v BRP [2003] SADC 47), I ruled that three separate trials be held in relation to ten offences of a sexual nature alleged in an information presented against the accused. Thereupon the Crown elected first to proceed with joint trial of the offences alleged in counts 1 and 10 of the information. Before empanelment of a jury, Mr Kane, counsel for the accused, made application that the video record of interview of the accused by Senior Constable Lengyel conducted on 21 December 2001 be excluded from evidence. There ensued a voir dire enquiry during which oral and documentary evidence was presented from five police officers.  Upon that enquiry, the following position emerged.

About 3.50 a.m. on Friday 21 December 2001, uniformed police officers attended at a Craigmore residence in relation to a potentially violent domestic disturbance in which the accused had been threatened with a knife by his de facto spouse (O).  When she was being detained and taken from the premises, the police officer in charge, Sergeant McCue, heard O refer to the accused as a rock spider, which is a slang expression for a paedophile.  About 4.50 a.m., Constable McFadyen was asked by Mc Cue to take O’s two children to the house of O’s sister and enquire of the elder, nine years old child whether she knew anything of that expression.  Upon that enquiry, the child (who is here the complainant) told McFadyen that the accused had that night (for the first time) made her “lick his willy” and that her mother had then entered the room.  When Constable McFadyen returned to the Elizabeth Police Station soon after 5.00 a.m., she told McCue of what the complainant had told her.

Meanwhile, Constable Andrews (who had also attended at the Craigmore residence and assisted in apprehending O) took the accused to the police station for the purpose of obtaining from him a statement about what had occurred that night. (She had not heard him being referred to as a rock spider.)  About 5.10 a.m., Andrews began taking a statement from the accused.  About 5.40 a.m., the accused told her that the complainant had grabbed and begun stroking his penis.  Perceiving that the statement was moving in an unanticipated direction, Andrews left the interview room and spoke with McCue about what she had been told by the accused.  McCue was told that the complainant had stroked the accused’s penis.  (He had previously been told by McFadyen that the complainant had said that the accused had made her lick his penis.)  After discussing the position with McCue, Andrews returned to the interview room and, without administering to him a caution, continued taking the accused’s statement.

About 7.00 a.m. that morning, when CIB officers commenced duty, Andrews again paused in taking the accused’s statement and spoke with McCue, Detective Bavey and Senior Constable Lengyel about what the accused had told her.  Lengyel (she thought) told her that it would have been preferable that a caution had been administered, but that she should continue taking the accused’s statement.  She did so for about another 90 minutes.  She completed taking that statement about 8.30 a.m., about three and a half hours after she had begun. She then gave the accused a copy of his completed statement to read and also gave a copy to Lengyel.  Upon reading that statement, Lengyel formed the opinion that the accused had committed a serious offence.  He decided to interview the accused at the earliest opportunity.

Upon the voir dire, all of the police officers concerned quite frankly conceded that a caution should have been administered by Andrews to the accused during the taking of his statement.  Lengyel added, however, that he was “going to treat it as a separate incident” saying (T229),

“He was being treated as a victim and that was the end of that scenario, then I was to take over as him being a suspect.”

He added (T230),

“I had no intention of dealing with that statement during the subsequent interview with him.”

As will appear, he did not adhere to that intention.

That a caution should have been administered to the accused by Andrews during the taking of his statement, when Andrews had evidence justifying a reasonable suspicion that he had committed an offence, is clearly established by legal authority (see Van der Meer v The Queen (1988) 62 ALJR 656, at 661; R v Dolan [1992] 58 SASR 501; and Gibson v Ellis [1992] 59 SASR 420, at 424). Furthermore, if the suspicion, or a reasonable ground for suspicion, arises during the course of an interview, the investigating officer’s obligation to ensure that the statutory requirements of recording interviews with suspects are complied with arises at that point and applies to the interview from that point (see section 74D(2) of the Summary Offences Act, 1953). Those requirements were also not here complied with. Quite realistically, for the Crown, Mr White did not contend that evidence of the statement taken from the accused by Andrews should here be admitted in evidence.

According to the statement (exhibit VD P2) of Senior Constable Lengyel, when he and Detective Bavey entered the room where the accused was reading the completed statement which he had made to Andrews, he advised the accused that he was being detained “in relation to the admissions he had made to Constable Andrews” and that they would be conducting a video interview “due to the nature of the admissions, to which he agreed” (my emphasis). Although Lengyel said, in evidence, that he could not recall saying those emphasised words to the accused, I am satisfied that he did say them.  As an experienced police officer, he understood the importance of accuracy in compiling his statement and he endeavoured to be accurate in detail (T264).  Moreover, although he said that had relied on the video record of interview in compiling his statement about two months later, he was unable to explain why the emphasised words do not appear in the record of interview but do appear in his statement (T266).

The accused was then taken to a video interview room where an interview was recorded on video and audio cassette. Understandably, that record of interview did not incorporate reading aloud to the accused the statement which had been taken from him by Andrews because (presumably) of the impropriety surrounding that statement having been obtained without caution although, arguably, that statement should have been read aloud to him, recorded on video tape and the accused invited to interrupt the reading at any time to point out errors or omissions (see section 74D (1)(c)(ii) and (iii) of the Summary Offences Act). However, more importantly, the video and audio record of interview also omitted to include a reading aloud to the accused of that conversation between Lengyel and the accused “in relation to the admissions he had made to Constable Andrews” for which he was being detained and “due to the nature of the admissions” he was then being interviewed. Although Lengyel disavowed, in evidence (T230; supra), any intention of dealing with the Andrews’ statement when interviewing the accused, in fact he did allude to the admissions made therein when advising the accused that “due to the nature of the admissions” they would be conducting a video interview with him. 

In view of the irregular procedure adopted in failing to caution the accused and then (understandably) not complying with the statutory requirements of section 74D, the accused was deprived of his statutory right to interrupt and point out errors or omissions in what had previous occurred (see section 74D(1)(c)(iii)).  Although Lengyel said (T231) that,

“during the record of interview I made no reference to the statement [to Andrews] and offered him to freely give me his version of the events without referring to the statement”,

and that,

“it was my understanding he made free admission and therefore I offered him to make those admissions under caution once he had been detained”,

he accepted (T233) that he did not ‘read back’ the terms of Andrews’ conversation with the accused during the subsequent video record of interview.  In his words, “I don’t believe I did.  I may have mentioned it”.  As previously observed, Lengyel did allude to the fact that admissions had been made when advising the accused that he was being detained and would be video interviewed.

In these circumstances, the video record of interview was prefaced upon the legally defective foundation that the accused had previously made admissions without first having been cautioned.  Upon that defective foundation, Lengyel then advised the accused that “due to the nature of the admissions” (my emphasis) he would be video interviewed.  In that manner, I consider that the video record of interview became inextricably linked with the inadmissible admissions in the accused’s statement to Andrews.  Once he admitted, without caution, that he had behaved improperly that night, practically, in my view, he became locked into that position, he was not to have known that those admissions would subsequently be excluded from evidence and the effect of those inadmissible admissions cannot be disregarded when considering the admissibility of the video interview which then immediately took place and was predicated upon those admissions. In my view, the video interview became inseparable from and tainted by the failure of Andrews previously to have cautioned the accused.  To my mind, the accused’s position was similar to that of the accused in R v Warner [1988] 49 SASR 125, not the accused in R v Dennis (decision of the Court of Criminal Appeals delivered on 8 December 1993), the distinction between whom I referred to in R v Nguyen (reasons for ruling delivered on 26 July 1999) when applying the view of Duggan J. in R v Trotter (reasons for ruling delivered on 28 February 1990 at 6). As Duggan J. there said,

“In effect what took place during the second interview was an exploration and extension of the previous discussion at the house, and once the accused had conceded on one occasion, namely at the house, that the drugs were his, then in my view the effect of this could not be ignored in the subsequent interview.

In all the circumstances of the case I take the view that the second interview has been tainted by the illegalities and the failure to advise the accused of his proper rights immediately before the all important admissions took place on the first occasion, and in those circumstances I rule that the first and second interviews are inadmissible.”

(My emphasis.)

For these reasons, I consider that, in the proper exercise of my discretion, the video record of interview should be excluded from evidence. This decision is founded upon common law principles of fairness (cf section 74G(b) of the Summary Offences Act). Were it necessary to consider the statutory provisions contained in sections 74C to 74E of that Act (cf R v Day [2002] SASC 95), the decision would be the same because, for the same reason (considerations of fairness) I am not satisfied that the interests of justice require the admission of that evidence despite any non-compliance by Andrews and/or Lengyel with section 74D(1)(a) and/or section 74D(1)(c)(i), (ii) and (iii) (cf R v Blayney and Blayney (2002) 220 LSJS 102, at 108); Cox J. in R v King and Pitson (No. 2) (1998) 199 LSJS 111; and my judgment in R v Smith (1999) 205 LSJS 427, at 435).

I so rule.