R v Clinton & Whelan - [2004] SADC 164

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLINTON & WHELAN
Reasons for Rulings of His Honour Judge Anderson
22 November 2004
CRIMINAL LAW - GENERAL MATTERS
VOIR DIRE
- Application by accused C to exclude evidence obtained pursuant to a warrant issued under the Telecommunications (Interception) Act 1949 - refused.
- Application by accused C to exclude evidence pursuant to s74D of the Summary Offences Act 1953 - granted.
- Application by Crown to use further evidence in support of voice identification of accused C - refused.
- Application by accused W to exclude evidence of voice identification not pursued.
- Application by accused W for separate trial made redundant by Crown nolle prosequi in relation to accused C.
Telecommunications (Interception) Act 1949; Summary Offences Act 1953, s74C, s74D, s74E(1)(b), referred to.
R v Hastings (2003) 85 SASR 256; R v Blayney (2002) 220 LSJS 102, applied.

R v CLINTON & WHELAN
[2004] SADC 164

The Accused, Richard James Clinton and Adam Nicolas Whelan, are jointly charged with one count of Aggravated Serious Criminal Trespass in a Non‑Residential Building and one count of Theft. At the commencement of the trial they entered pleas of not guilty to each.
Mr Ibbotson of counsel appeared for the Accused, Clinton (“C”), and Mr Vadasz for the Accused, Whelan (“W”). Mr Lesses appeared on behalf of the Director to prosecute.
At the commencement of this trial it was necessary to consider the Rule 9 Notices filed by each of the Accused.
As the voir dire hearing proceeded I gave rulings for which I reserved the right to publish reasons. I now do so.
Telecommunications (Interception) Act 1949
The first order C sought was that the tape recordings of intercepted telephone calls of 8 November 2003 and 17 November 2003, said to be between the two Accused, and the transcripts thereof, not be admitted into evidence.
Mr Vadasz, on behalf of W, adopted Mr Ibbotson’s submissions on this ground and did not make separate submissions. I proceeded as if he had orally amended his Rule 9 Notice.
It is conceded by the defence that an “Intercept Warrant – class 2 offences” was properly issued on 30 October 2003. It remained in force at the relevant times. It was issued pursuant to the provisions of the Telecommunications (Interception) Act 1979 (“the Act”).
Clause 2 of the warrant is in these terms:
“(a).....
(b).....
(c)information that would be likely to be obtained by intercepting, under a warrant, communications made to or from the service, would be likely to assist in connection with the investigation by the agency of the following class 2 offences, in which the person is involved:
offences pursuant to Section 32(1) of the Controlled Substances Act, 1984, being offences where the conduct constituting the offences involved, involves or would involve the trafficking in prescribed substances namely amphetamine. The offences are punishable pursuant to subsection 32(5)(b) of the said Act, by imprisonment for a maximum period of up to 25 years, or life, depending on the amount of amphetamine involved;”
Interceptions pursuant to the warrant were not subject to any instructions or conditions.
In accordance with the Act a certifying officer of the relevant agency – the South Australian Police – swore an affidavit on 10 June 2004. It is not in dispute that that affidavit complies with s61(4) of the Act.
Paragraph 13 of that affidavit refers to an annexure to the affidavit which identifies communications “as being relevant to the proceeding or proposed proceeding”.
In that annexure 28 communications or records are identified. It is not in dispute that the records CSN32 and CSN151 are the calls referred to as “ON2” and “ON4” in paragraph 1 of the first Accused’s Rule 9 Notice..
It also has not been contested that the remaining 26 calls, from their content, seem to relate to the purpose of the warrant as set out in Clause 2(c) (ibid).
The principal submission of Mr Ibbotson is that these two communications were not lawfully obtained. In the alternative, if lawfully obtained, they are not admissible in evidence pursuant to s74 of the Act as s77 has been infringed.
The earlier submission proceeds on the basis that these conversations have no connection with drugs. This is because the warrant was specific – to a named service involving a named person for a clear and identified purpose as set out in Clause 2(c) (ibid). A choice from all intercepted calls has been made to reach the contents of the annexure and even though that choice involved leaving aside calls which did not relate to the purpose of the warrant, the two calls with which we are here concerned, and which also did not relate to that purpose, have been included.
It is submitted that, as these two calls do not relate to the stated purpose of the warrant as in Clause 2(c), their inclusion in the annexure is unlawful. As they are unlawfully so included they are not admissible against the Accused in this matter.
This submission relies upon s61(5) of that Act being read down to exclude the use of the definition in the Act of both the phrase “exempt proceeding” (s5B) and the phrase “prescribed offence” (s5).
This reading down requires that there be seen to exist within the Act a distinction between using information received pursuant to the execution of the warrant (as in the annexure) so that communicating it to others may be permitted (as in s68), and the giving of it in evidence.
Mr Ibbotson conceded that, for present purposes, these proceedings are “exempt proceedings” within the Act, but submitted that because the interception of calls ON2 and ON4 was not authorised by the purpose of the warrant, their mention in the annexure was unlawful. Consequently, that information is only able to be communicated pursuant to the communicable provisions of the Act and cannot be used in evidence. No authority was cited to support this proposition.
Why such information, which is said to be unlawfully obtained, might be used for the purpose of communication for some purpose as permitted in the Act, but not be communicated and used as evidence, has not been explained other than by reference to what is said to be the intention of the Act in such regard: i.e. that there is a difference of purpose between using the information for a non‑evidentiary purpose and using in evidence.
It is crucial to Mr Ibbotson’s argument that the information in the annexure relating to these two calls is unlawful. In my opinion, Mr Lesses, in his submission, has clearly dealt with that principal arm of Mr Ibbotson’s submission.
It is not disputed that the interception was authorised by the provisions of s7(2)(b). Were such authorisation not to be all inclusive, then it would have been easy for the Parliament to qualify the bounds of the warrant there referred to as Mr Ibbotson has sought to do by relying upon the words used in Clause (2)(c). Of course, there exists a separate provision within the warrant to restrict the scope of the warrant, but that has not been done.
The reference to “lawfully obtained information” in Section 6E supports a broad interpretation of the capacity to intercept if authorised by a warrant without further restriction.
The suggestion that the information obtained is unlawful for evidentiary purposes, but lawful for intelligence gathering or some other purpose is not supported by the way in which the words “lawfully obtained information” are used in ss67 and 68 of the Act. The information, as categorised by Mr Ibbotson, could not be used for the sole purpose which he allowed should it not be lawfully obtained.
Section 77 constrains how a record of communication which has been intercepted may be used in evidence. It is inadmissible unless permitted in this matter by s74 to be given in evidence.
It is not in issue that this is an exempt proceeding as that expression is used in s74. It is a prosecution for a “prescribed offence” where more than three years imprisonment is the maximum sentence (Section 5).
This interpretation of the breadth of the Act does not in any way depend upon the categorisation of offences as class 1 or class 2 once it has been established, as I am here satisfied, that the interception pursuant to the warrant was lawful, and not constrained to the type of offence described by Clause 2(c) of the warrant. Thus, such “lawfully obtained information” may be given in evidence pursuant to the provisions of s74 of the Act.
I refused the application in paragraph 1 of the Rule 9 Notice.
Section 74D Summary Offences Act 1953
Paragraph 3 of the Rule 9 Notice filed by the Accused C sought to have the record of interview of 9 March 2004 between C and Detective Senior Constable Bussenschutt excluded from evidence. This application had no application to the Accused W.
Paragraph 6 of that Notice sets out several bases for the order sought. Presently, only paragraph 6(C) has been argued although other sub paragraphs have been touched on in argument. Subsequently, no further submissions were made in relation to the balance of paragraph 6.
The objection is based upon the alleged failure of the interviewing officers to comply with the provisions of s74D of the Summary Offences Act 1953 (“the Act”). The Notice refers to an unrecorded conversation between the Accused and Detective Senior Constable Bussenschutt in the video recording room of the Port Pirie police station on 9 March 2004, before the video recorded record of interview commenced. However, during evidence it became apparent that, upon completion of the record of interview, and whilst arrangements were being made for a forensic procedures video to be made, there was a further unrecorded conversation between Detective Senior Constable Bussenschutt and the Accused. Detective Senior Constable Borgardt, who was present for the record of interview and for at least part of the unrecorded conversation which preceded it, was present for and took some part in this later conversation. This second unrecorded conversation was incorporated into the application.
Mr Ibbotson submitted that the conversations each side of the record of interview should have been recorded in compliance with s74D as they were all part of the one “interview” within the terms of s74C of the Act.
It is conceded that, on 9 March 2004, Detective Senior Constable Bussenschutt both suspected the Accused of having committed an indictable offence and proposed to interview him, thus activating the pre‑conditions of s74D.
At issue here is whether these conversations (excluding the forensic procedure process) constituted an ‘interview” for the purpose of s74D. The definition of that word is to be found in s74C in these terms:
“In this Part –
Interview includes –
(a)     a conversations; or
(b)     part of a conversation; or
(c)     a series of conversations;”
This question is to be considered in light of the view expressed in R v Karger (2002) 83 SASR 135 to the effect that a broad interpretation is to be given to the word “interview”. The consequence of this view has been that short and often quite innocuous conversations between a police officer and an accused have been held to be within the concept of “interview”: see R v Hastings (2003) 85 SASR 256 where the failure to record an arrangement to interview was conceded to be a breach of the section.
There is no doubt that there was a conversation. Detective Senior Constable Borgardt said in evidence on the voir dire that, at that time, she commented to the Accused “how well he looked compared to the last time” she had seen him (T156). She was unable to recall any other conversation before the record of interview commenced.
Detective Senior Constable Bussenschutt said in evidence that he had a conversation with the Accused before the video recording commenced (T67). He said that it was to confirm that legal advice had been obtained by the Accused before the record of interview began.
In cross‑examination it was put to Detective Senior Constable Bussenschutt that this conversation also extended to what the legal advice was – namely that the Accused would not answer questions but would listen to the allegations. This was denied, notwithstanding, in Q19 of the record of interview, Detective Senior Constable Bussenschutt, when referring to this conversation used the expression “a bit difficult because [the Accused] didn’t know what the matters were”. It was not disputed that by using the word “matters” he meant allegations. No note was made of the first conversation. Thereafter, in the record of interview Detective Senior Constable Bussenschutt confirmed that the Accused was willing to proceed (Q20).
Mr Lesses submitted that this conversation was beyond the scope of s74D. There was no requirement at law to cover the topic of legal representation at this time and so there was no requirement to record. In any event, he submitted, even if there were such a requirement, no discussion relevant to the topic of the proposed record of interview was canvassed in this conversation.
In my opinion, this was a conversation within the definition of s74C as being one of a ‘series of conversations” and as such is caught by s74D. I shall return to the issue of whether the non‑compliance is saved by s74E(1)(b).
I am not of the view that the “social” comment by Detective Senior Constable Borgardt to the Accused at this time is a “conversation” in this context.
In the record of interview, from Q170 to Q188, Detective Senior Constable Bussenschutt asked questions concerning the relationship between the Accused and one Matthew Kokotis.
The Accused was arrested in relation to the current charges at Q302. The record of interview finished 23 questions later after the relevant caution and procedural information was given to him. The record of interview then ceased at 9.51am. It had commenced at 9.12am.
After the record of interview ended there was a requirement that the undertaking by the Accused of a forensic procedure be video taped separately from the record of interview and in accordance with a pro‑forma. There was a break of about 19 minutes between the two recordings. In that time there was further unrecorded conversation between the interviewing officer, Detective Senior Constable Borgardt, and the Accused.
Detective Senior Constable Bussenschutt said in evidence that he raised again the topic of Matthew Kokotis and asked the Accused some questions about him in what he called “an information gathering exercise”. Detective Senior Constable Borgardt said that the questions were about the Kokotis twins.
Neither officer made a note of the conversation – Detective Senior Constable Bussenschutt said this was because nothing was forthcoming and Detective Senior Constable Borgardt did not because Detective Senior Constable Bussenschutt was the officer controlling the drug investigation and the questions were in that regard.
Again, Mr Ibbotson submitted that this conversation should have been recorded in compliance with s74D as part of a “series of conversations” - s74C. I agree.
The Crown position, that these questions, whatever they were, because there is some inconsistency between the officers, were not part of the investigation and in no way related to what had gone before, does not save the conversation from the clutches of s74C and s74D.
To end a record of interview and then immediately begin to ask questions of the interviewee about a person who had been an object of interest in the record of interview, albeit not in a substantial way, is, at best, an error of judgment. A perusal of the questions asked from Q170 to Q188 may well lead to the conclusion that they also were directed to some form of “information gathering”. In the absence of any record of the subsequent conversation, the sense in either not asking the questions or, doing so on video, is highlighted.
The failure to record this conversation is a breach of s74D.
Can either unrecorded conversation be saved by s74E(1)(b)? In my view, they cannot.
The failure to record the two conversations was a product of a misunderstanding by Detective Senior Constable Bussenschutt of the breadth of the definition of “interview” in s74C. There was no deliberate or wilful non‑compliance.
In relation to the first conversation there is some obvious difference between its scope and content as given in evidence and the purport of the resume of it given in Q19. In relation to the second conversation there are different versions of its content given in evidence and it is related directly to a person mentioned in the record of interview.
Thus, in relation to each conversation there is a varying degree of certainty as to what was said. Whilst this voir dire is different from some others in that the Accused exercised his right not to give evidence, the uncertainties to which I have referred have the capacity to affect the cogency of the evidence.
Consequently, I was not satisfied that the interests of justice require the admission of the evidence which otherwise is in breach of s74D of the Act.
Voice Identification
Each Accused sought to have the proposed evidence of the alleged voice identification by the respective police officers of their voices excluded from evidence.
The Crown case against the Accused C was based upon the identification of his voice by Detective Senior Constable Bussenschutt.
In evidence in chief on the voir dire Detective Senior Constable Bussenschutt said that he spoke to a person he believed to be the Accused by mobile telephone on 23 February 2004, 27 February 2004 and 5 March 2004. Each was a short call not exceeding one minute to make or alter arrangements for the Accused to attend at the Port Pirie police station. He also said that in these short calls he recognised the voice to which he was speaking as a voice he had heard on the intercepted telephone calls ON2 and ON4 (T60/61). It is not in dispute that he had not listened to any such calls since 19 January 2004 and before that he is unable to say when or how he listened to them subsequent to 17 November 2003 as he did not make any notes of having done so.
To draw this conclusion after such a time where he subsequently refreshed his memory on 9 March 2004, before speaking to the Accused, at the Port Pirie police station, risks what is known in the identification cases as the “displacement effect” of the subsequent refreshing when related to the earlier conversations. In addition, after such a time gap these short calls are an insufficient basis upon which to purport to identify C’s voice.
This evidence is placed in further doubt by subsequent evidence in cross‑examination to the effect that he recognised the voice in the tape room and this recognition was reinforced as the record of interview progressed (T331).
This answer also places some uncertainty on the evidence given in chief that on 9 March 2004 he recognised the voice at the police station front counter before going to the video room. Detective Senior Constable Bussenschutt had no notes or recollection of what was said, but conceded it would have been a very brief conversation.
Detective Senior Constable Bussenschutt said in evidence on the voir dire that he recognised the Accused’s voice from conversations in that room before the record of interview began and confirmed that opinion as the Accused continued to speak during the interview, which ran for 41 minutes. That evidence is supported by the only reasonable inference arising from the fact of the Accused’s arrest for the charged offences at its conclusion.
After a break of 19 minutes, and still in that room, a video of a forensic procedure was made in accordance with the Criminal Law (Forensic Procedures) Act 1998. The Accused had consented to as much at Q314 and A315 of the record of interview. After this procedure was completed the Accused was charged in the usual way.

No evidence was given on the voir dire by Detective Senior Constable Bussenschutt of any recognition by him of the Accused’s voice on either of these two occasions, i.e. the forensic procedure undertaking or the attendance at the charge counter. Of course this is not surprising because the evidence is that recognition was made well before the arrest of the Accused during the record of interview. Thus, at the time of the forensic procedure and the charging, Detective Senior Constable Bussenschutt was sure in his own mind of the identity of the Accused as an identifiable voice on the intercepts ON2 and ON4.
Consequent upon my ruling on the s74D application, Mr Lesses sought to rely on the forensic procedure occasion and the attendance at the charge counter on the topic of the recognition by Detective Senior Constable Bussenschutt of the Accused C’s voice.
I refused that application upon the basis that there was no evidence that these occasions were used for such a purpose at all. Indeed, the overwhelming inference from the evidence, and from what actually occurred, is exactly to the contrary.
In addition, originally the Crown case was pitched directly upon the voice recognition within the now excluded conversations. It is not appropriate to permit the whole thrust of that case to be changed consequent upon an adverse ruling where there is no extant evidence to support the new basis sought to be relied on and where there has not been any application to re‑open the voir dire for the purpose of filling the void in the evidence and permitting cross‑examination on what may be revealed in such evidence.
Consequent upon the s74D ruling, no evidence in chief or cross‑examination may occur about what occurred in the conversations therein referred to. Thus, the Accused would not be able to test by cross‑examination the conclusion reached by Detective Senior Constable Bussenschutt by reference to what had occurred before the forensic procedure. This would significantly disadvantage the Accused and would be unfair.
Upon this application by the Crown, Mr Ibbotson sought to include the forensic procedure video recording within the s74D order on the bases that it had been referred to in the record of interview, the Accused had there consented and its stated purpose was to further the investigation by obtaining and comparing the Accused’s DNA.
As it happened, there is no positive DNA result and therefore no probative evidence from the forensic procedure.
I am not persuaded that the undertaking of the forensic procedure, where so doing was either mentioned in what is now an impugned conversation, or that its acknowledged objective was to continue the investigation of the alleged offences in relation to the Accused, thereby renders it a conversation, or part of a series of conversations, for the purposes of s74D. It is a quite separate procedure here conducted with the apparent consent of the Accused. It had no purpose to serve in terms of the preconditions to the operation of s74D. Not every conversation, even where the same topics are discussed need be within s74D: R v Blayney (2002) 220 LSJS 102 at 108
I have not considered the general question of whether or not such a procedure which fails to reveal evidence which may be admitted at trial is able to be used for a purpose other than that set out in the Act so as to provide the basis for a voice identification. At first blush, I am unable to see why not, but as there is here no evidence that that was done the question does not arise.
Hence, I refused to admit these two events for the purpose sought by the Crown.
The Crown case in relation to the identification of the voice of the Accused W relied on the evidence of Detective Senior Constable Borgardt. After her evidence on the voir dire it was plain that she was sufficiently familiar with his voice for the evidence to be admitted. Mr Vadasz did not make any submissions on his Rule 9 Notice on this topic.
The issue of separate trials fell away as a consequence of my order in relation to the evidence proposed to be led against the Accused C.