R v Cvitko No. Sccrm-00-137

R v CVITKO
[2001] SASC 72

In the Criminal Jurisdiction : Reasons for Rulings

1................ MARTIN J......... The accused was presented for trial upon charges of Aggravated Serious Criminal Trespass (s 170(2) of the Criminal Law Consolidation Act 1935) and Armed Robbery (s 158(a)). Objection was taken to the admissibility of two records of interview. Following a voir dire examination I excluded the first record of interview, but declined to exclude the second. I now set out my reasons for those rulings.

The Crown alleged that on 28 January 2000 at Woodville, the accused and Andrew Charles Staker entered a residence while Staker was armed with a knife with the intention of committing the offence of armed robbery. It was the Crown case that the accused and Staker tied up the male occupant of the premises, put a bag over his head and committed the crime of armed robbery. Staker pleaded guilty to those offences and to a number of offences of rape committed upon the female occupant of the premises. The accused was not charged with any offences in connection with the crimes of rape.
Staker was arrested on 1 February 2000. The accused was at the premises where Staker was arrested but, at that time, the police did not have any information suggesting that the accused was involved. As a result of further inquiries, evidence was obtained implicating the accused in the events at the house. On Monday 6 March 2000 a warrant of apprehension was issued at the Port Adelaide Magistrates Court for the arrest of the accused.
On 8 March 2000 the accused was arrested in Melbourne pursuant to the warrant. Later that day he was interviewed at length by the arresting officers and made admissions as to his involvement in the events of 28 January 2000. Objection was taken to the admissibility of that interview.
The accused was extradited from Victoria to South Australia on 9 March 2000. That evening the officers involved in extraditing the accused conducted an interview with him which commenced at 8.40 pm and concluded at 10.09 pm. The interview was recorded on video. In essence the accused gave the same version he had given to the Victorian Police. He admitted committing the offences of Aggravated Criminal Trespass and Armed Robbery, but denied any involvement in the crimes of Rape. In substance the accused said that he and his fiancee were at a premises occupied by Staker when Staker said they were going for a drive. He accompanied Staker and another man and, while in the motor vehicle, Staker said he was going to “do a job” and that he wanted the accused to assist him. The accused objected, but Staker threatened to cause harm to the accused’s fiancee who was still at Staker’s residence. Fearing harm would come to her because Staker was a very violent and dangerous man, and in fear of Staker, the accused agreed to be involved. The accused gave full details of the events that constituted the crimes of Aggravated Serious Criminal Trespass and Armed Robbery, but said he was outside the premises at the time that the crimes of Rape were apparently committed by Staker.
Objection was also taken to the interview conducted by the South Australian police officers. The basis of the objection is not found in any conduct on the part of those officers. Counsel relied upon events in Victoria to argue that the admissions were not given voluntarily because the inducements and threats made in Victoria were still operating. Alternatively, it was said that the admissions should be excluded in the exercise of the court’s discretion.
As mentioned, the warrant of apprehension was issued on 6 March 2000. At that time the investigating officers believed that the accused and his fiancee, Ms Joanne Spraggs, were residing in Melbourne. On 7 March 2000 a number of documents were forwarded to the Victorian Police with a view to the accused being arrested and extradited to South Australia.
Detective Sergeant Dowell and Detective Meese who were stationed at the Preston Police Station were the officers primarily involved with the accused in Victoria. They first attended at premises believed to be occupied by the accused and Ms Spraggs soon after 6 am on 8 March 2000. A vehicle registered in South Australia was seen to leave the premises. A check in respect of that vehicle resulted in the officers being provided with information from South Australia which suggested to them that the vehicle was stolen. At about 7 am they re-attended at the premises, but only Ms Spraggs was present. She was arrested in respect of the vehicle that the officers believed was stolen.
Further inquiries resulted in the accused being located. He was arrested at 8.43 am and conveyed to the Preston Police Station. According to Detective Meese, upon his arrest the accused was advised of his rights to communicate with a friend or relative to inform that person of his whereabouts and to communicate with a legal practitioner. He said the accused declined to exercise those rights at that time.
At 9.36 am, in the presence of Detective Sergeant Dowell, Detective Meese commenced an interview with the accused. An audio recording was made of the interview. An appropriate caution was given. When informed of his rights to communicate with a friend or relative to inform that person of his whereabouts and to communicate with a legal practitioner, the accused said he wished to contact his fiancee and his solicitor. He was told that Ms Spraggs was presently in custody at the Preston Criminal Investigation Office. The accused provided the name of his solicitor and indicated that the phone number was written in Ms Spraggs’ notebook. When he asked why Ms Spraggs was in custody, Detective Meese replied “It’s none of your business”. During cross-examination Detective Meese acknowledged that his answer was “stupid”.
At 9.39 am the interview was suspended in order for the police to make further inquiries and for the accused to contact a legal representative (“the break”). According to both Detective Meese and Sergeant Dowell, immediately following suspension of the interview and after the audio recording equipment had been turned off, the accused volunteered the following comment:
“I didn’t fuck her. I only cut the cunt’s hair off.’
Detective Meese said the accused went on to say that he was not a rapist and asked to see Ms Spraggs. According to Detective Meese, the officers did not respond to the comment about the hair, but he told the accused he was not able to see Ms Spraggs at that time.
During the events in South Australia that gave rise to the charges, one of the offenders had cut off the hair of the male occupant. However, at about 9.39 am when, according to Detective Meese, the accused made the comment about the hair, the Victorian police officers were not in possession of any information about hair being cut off. Confirmation that the officers received this information from the accused came from the evidence of one of the South Australian investigating officers, Detective Johnson. He was an impressive witness and I have no hesitation in accepting that he gave truthful and accurate evidence. He said that he first spoke with Detective Meese briefly on the morning of 8 March 2000 when Detective Meese told him that they had arrested the accused and they were about to interview him. About 10 or 15 minutes later, Detective Johnson received a second telephone call from Detective Meese. As to the second conversation, Detective Johnson gave the following evidence (p 239):
“A.... As best I can remember, it was Detective Meese said to me ‘What’s this about someone getting their hair cut off?’ and I said ‘What do you mean by that?’ He said ‘he reckons he’s cut someone’s hair off’.”
Detective Johnson said he was quite excited by the remark because it was an acknowledgment by the accused that he was one of the two persons who entered the premises. It was after that conversation that a copy of the female victim’s statement was forwarded to Detective Meese.
I am satisfied that, immediately following cessation of the interview and after the audio recording equipment had been turned off, the accused volunteered the comment about cutting the hair to which I have referred. Prior to the accused making the comment and while the audio recording equipment had been operating, Detective Meese had given the accused an appropriate caution. There is nothing in the evidence to suggest that the Victorian police officers had behaved improperly in their dealings with the accused prior to the making of the comment. I am satisfied that the accused made the comment voluntarily.
As to exclusion in the exercise of my discretion, I have discussed later in these reasons the failure of the Victorian officers to comply with the provisions of the Service and Execution of Process Act 1992 (Cth). That failure did not occur, however, until about 10 am when a Magistrate first became available in a court next door to the police station. The comment was made at about 9.39 am or shortly thereafter.
As the comment amounted to an admission, consideration must be given to the application of s 464H of the Crimes Act 1958 (Vic) (“the Crimes Act”). Section 464H states that an admission by a person in the position of the accused is inadmissible unless certain conditions are met. If the admission was made “before the commencement of questioning”, it is inadmissible unless tape recorded or unless the substance of the admission was confirmed by the person making the admission and the confirmation was tape recorded: s 464H(1)(c). If the admission was made “during questioning”, the questioning and any responses are inadmissible unless tape recorded: s 464H(1)(d). In the circumstances of the accused, the threshold question is whether the admission by way of comment about the hair was made before or during the questioning for the purposes of s 464H(1)(c) and (d).
On one view, the admission was made before the commencement of questioning. The initial part of the interview commenced at 9.36 am and ceased at 9.39 am. The interview did not resume until 12.06 pm. It then continued from 12.06 pm until 1.43 pm. On this view, anything said during that two and a half hour break was said before the commencement of questioning. The alternative view is that anything said during the two and a half hour break is, for the purposes of s 464H, part of one process of questioning which began at 9.36 am and concluded at 1.43 pm.
In Pollardv The Queen (1992) 176 CLR 177, the High Court had occasion to consider the operation of s 464 of the Crimes Act and, in particular, whether separate occasions of questioning at different locations should be viewed as one process of questioning or different periods of questioning for the purposes of s 464H. In that matter the accused had first been questioned at Frankston and, some hours later, had participated in a second period of questioning at St Kilda. Four members of the High Court concluded that in those circumstances involving different periods of questioning at different places, those periods were not part of one continuous process of questioning for the purposes of s 464H. The minority of three justices took the opposite view. In the reasoning of the majority, the disparity in time and place between the periods of questioning was significant. Toohey J supported the majority view, but his Honour acknowledged that separate periods of questioning might be treated by the court as part of the same questioning if circumstances, in particular proximity of time and place, so dictate. His Honour observed that “questions of degree are necessarily involved” (p 219).
No submissions were directed to this issue and, in view of the conclusions I have reached, it is unnecessary for me to finally determine this issue. I tend to favour the view that, in the circumstances of this matter, anything said during the two and a half hour break is, for the purposes of s 464H, part of one period of questioning that commenced at 9.36 am and concluded at 1.23 pm. If that view is correct, subject to s 464H(2), s 464H(1)(b) and (d) dictate that any admission made is inadmissible unless tape recorded. On that view, anything said during the two and a half hour break, including the comment about the hair, is inadmissible because it was not tape recorded.
Section s 464H(2) allows a court to admit evidence of an otherwise inadmissible admission if the court is satisfied on the balance of probabilities that the circumstances are exceptional and justify the reception of the evidence. If necessary, I would have admitted the volunteered comment about cutting the hair pursuant to s 464H(2). It was made immediately after the audio recording equipment had been turned off with the intention of taking a break and, as explained later in these reasons, I am satisfied that the accused was anxious to give his version. In addition, during the subsequent questioning in Victoria and in South Australia the accused admitted that he cut off the hair of the male occupant.
If the alternative view prevails that the comment was made before the questioning, s 464H(1)(b) and (c) provide that the comment would be inadmissible unless the substance of the admission by that comment “was confirmed” by the accused and “the confirmation was tape recorded”. During the subsequent questioning following the break, which was recorded, the accused again admitted that he cut off the hair of the male occupant and again denied that he had been involved in any sexual assault upon the female occupant. In substance, therefore, the accused repeated the admission and that repetition was recorded. However, counsel argued that confirmation in that manner was not sufficient for the purposes of s 469H(1)(c). He contended that in order to comply, upon resumption of the interview and while it was being recorded, it was necessary for the officers to confirm with the accused that, during the break, he had made the admission in the form of the comment.
I was not referred to any authority on this issue. Read literally, s 469H(1)(c) could be interpreted as requiring that the questioner confirm with the accused the fact that the accused had made the admission during the break. On another view, if the accused subsequently repeated the admission, that repetition could be seen as a confirmation of the substance of the earlier admission. It is unnecessary for me to decide this issue. I accept the evidence of the officers that they did not consider it necessary to specifically raise the fact of the comment with the accused upon resumption because the topic of cutting off the hair was covered in the later questioning and the accused admitted that he had cut off the hair. If the accused had denied cutting the hair Detective Meese would then have put to the accused that he had made an admission by way of the comment during the break. Even if the accused’s contention is correct, in the circumstances of this matter, and particularly bearing in mind the accused’s later repetition of his admission that he cut hair off the male occupant, I would have regarded the circumstances as exceptional and such as to justify the reception of the evidence pursuant to s 464H(2). In all the circumstances, whatever view of the operation of s 464H is correct, I would have admitted evidence of the comment if the Crown had sought to lead it. In addition, in the circumstances I have discussed, I would not have excluded the comment in the exercise of my discretion.
As mentioned, the interview was not recommenced until 12.06 pm. Detective Meese said that during the break he spoke with Detective Johnson and received a copy of the statement of the female victim from South Australia. He and Sergeant Dowell familiarised themselves with the content of that statement. Detective Meese said he ascertained that a telephone adjacent to an interview room was available. He spoke to the accused about the accused telephoning his solicitor. The accused declined to telephone his solicitor and said that he would wait until he returned to South Australia.
Detective Meese said he did not have the telephone number of the accused’s solicitor and that the number would have been ascertained through Directory Assistance. Sergeant Dowell had a memory that attempts through Directory Assistance to ascertain the number of the solicitor had been unsuccessful. The evidence of Sergeant Dowell is highly unlikely to be correct. More than one number for the solicitor was listed in the Adelaide Telephone Directory at that time.
Detective Meese said that after the accused had declined to speak with his solicitor, he was left in a locked interview room while the officers continued their inquiries and prepared to conduct the interview. During the break, the accused was taken outside at his request so that he could have a cigarette and go to the toilet. While outside the accused made remarks to the effect that he was not a rapist. He was told that South Australian detectives would be travelling to Victoria to pursue an application that he be remanded into their custody for extradition back to South Australia. Detective Meese said that the accused raised the question of bail and was told it was inappropriate to discuss the issue of bail which should be discussed with his counsel. The accused was adamant that he wanted to see Ms Spraggs. He was told that she was being spoken to in connection with the Datsun and that he would be permitted to see her after his interview had been completed. Detective Meese said the accused again raised the issue of the allegation of rape and Detective Meese responded that they wished to speak to him about that and it was up to him whether he spoke to them or not. Sergeant Dowell also said the allegations were not discussed. Prior to the interview recommencing, the accused was provided with coffee and a meal.
Upon resumption of the interview, the accused was again cautioned and informed of his rights. He said that he did not wish to exercise any of the rights before the interview proceeded. He agreed that in the break following the commencement of the interview he had expressed a desire not to speak to his solicitor and also a desire to speak further with the police about the matters in South Australia. The accused responded affirmatively to formal questions confirming that he had not spoken to Ms Spraggs, that he had been informed she was giving a statement and that he had been told he would be able to see her before the proceedings had been finished that day. Asked if he was happy to continue with the interview, the accused replied “Yes”.
The transcript discloses that the accused readily cooperated and answered all questions. There is no hint of reluctance. He gave a version that was very similar to the version later given to the South Australian detectives. Shortly before the conclusion of the interview, the accused consented to his fingerprints being obtained and to the taking of a sample of blood.
Following conclusion of the interview at 1.23 pm, the forensic procedures were undertaken. At 2.45 pm the accused signed a narrative statement concerning the events in South Australia, which included an acknowledgment that the statement was true and correct and that it was made in the belief that a person making a false statement in those circumstances was liable to the penalties of perjury. The accused’s signature was witnessed by Detective Meese, but Detective Meese had no memory of the circumstances in which that statement was brought into existence. Detective Petsas said he was present for short periods of time while that statement was being taken, but he was not able to assist as to what was said at the outset.
At some time after 2.45 pm and before 5 pm, the accused was taken to a court next door to the police station where he appeared before a Magistrate. He was remanded in custody. Pursuant to a standard procedure adopted in the Preston Police Station, the accused was asked about his treatment. According to the written record, a Detective Sergeant Bardsley asked the accused whether the detectives had explained to him what was happening and the accused responded in the affirmative. The officer then asked whether the accused was satisfied with his treatment by the detectives, and the accused responded “Yes, good”.

During cross-examination of Detective Meese and Sergeant Dowell, an attack was made upon their credibility in a number of respects. In substance, it was put to the officers that during the break in the interview while the audio recording equipment was turned off, the officers threatened to charge Ms Spraggs if the accused did not cooperate with them. It was suggested that they reached a deal with the accused that in return for his cooperation in answering their questions they would not charge her. The officers denied any inducement, threat or deal. Counsel also suggested that during the break the officers discussed the circumstances of the crimes at some length with the accused. That suggestion was denied.
The accused did not give evidence. Counsel relied upon inferences that he submitted should be drawn from the Crown evidence. He first referred to the number of occasions on which Ms Spraggs was mentioned. He suggested those references supported the view that the police were using her position as an inducement to the accused to answer questions. I am unable to agree. The accused’s concern about the position of his fiancee is not surprising and there is nothing in the content of the taped interview that could reasonably be viewed as an undue emphasis upon or reminder of her position. Following resumption of the interview, in the formal questions designed to confirm conversations that had occurred during the break, the accused confirmed that he had not spoken to Ms Spraggs and that he was aware that she was giving a statement to detectives in relation to the South Australian events. He was told that she would be able to see him before the proceedings of the day were finished.
Counsel placed particular reliance upon a question that followed the formal confirmation of other matters when Detective Meese said:
“Now what I’ll do, I’ll start. The start is obviously a very good spot to start. Who is Joanna Jane Spraggs?”
The officers already knew who Ms Spraggs was. However, I do not draw any adverse inference from the way in which Detective Meese sought to commence his questioning about the relevant events. I have listened to the audio recording. It was a hesitant question in which Detective Meese sought to find a starting point. He followed that question by asking whether on the relevant date the accused was at a particular address with Ms Spraggs.
Of more weight were counsel’s submissions that a number of passages in the interview support the view that more had been said during the break than the officers had admitted.
Particular emphasis was placed on an answer given at the outset of the interview. The formal questions confirming conversation during the break had been completed and Detective Meese told the accused that he was in possession of a statement concerning the incident in South Australia. The accused acknowledged that he could remember the occasion and the following conversation occurred:
“Q.... Do you wish to tell me anything about this incident? Or what can you tell me about it?
A.What, what I said before?
Q...... Yeah, what you told me that you, you said to me, you briefly said to me in the break that you know what it’s all about, that you asked me, would you agree that during the break you asked me what this is about a rape.
A.Yes.
Q...... And I explained to you briefly the reasons as I did prior, the reasons for your arrest and being brought here today.
A.Yes.”
Counsel suggested that in referring to what he said before, the accused could not have been referring only to his comment about the rape and the hair. He suggested the answer was indicative of some discussion during the break about the events in South Australia. If this answer had stood alone, I doubt that I would have been prepared to draw the inference for which counsel contended. However, the answer must be viewed in the context of other matters to which counsel referred which are capable of supporting an inference that some discussion about the events in South Australia had taken place in the break.
Detective Meese had received information orally from Detective Johnson and in a written form through documents sent to Victoria from South Australia. The information was conveyed primarily in a synopsis of events and in the statement of the female occupant of the premises. Counsel referred to a number of questions which he suggested demonstrated that Detective Meese was in possession of information that could not have come from the information forwarded from South Australia and could only have come from the accused during the break.
Well into the interview, the following question was asked by Detective Meese:
“Q.... By the way, I’ve said Mick a couple of times here. The victim, the male person’s name was Michael, so, referred to as Mick. So if I refer to the victim, one of the victims, the male victim I’m referring to him as Mick.”
Prior to that question, Detective Meese had not used the name Mick or Michael. He had referred to the male victim on a number of occasions without reference to a name. Counsel sought to draw the inference that the question demonstrated that during the break there had been a discussion with the accused in which Detective Meese had spoken of the male victim as Mick.
It would not be surprising if Detective Meese had the name Mick in his mind. The statement of the female occupant that Detective Meese had read in preparation for the interview referred to the male occupant as Michael, but it also stated that the female occupant referred to Michael as Mick. However, when Detective Meese was asked about this reference, he responded by saying that the accused “obviously brought the name up” while they were outside during the break. He said he could not specifically recall the conversation. He was adamant that if the name had been brought up, it had been brought up by the accused.
It is possible that the accused knew that the male occupant was called Mick. In my view, however, the explanation proffered by Detective Meese is highly unlikely to be the true explanation. I also doubt that the conversation between the accused and Detective Meese during the break is the reason why Detective Meese used the name Mick at this point in the interview. I consider it is far more likely that Detective Meese had the name in his mind as a consequence of reading the statement of the female occupant and that he mistakenly thought that earlier in the interview he had used the name Mick. While the use of the name is not, therefore, of any particular significance, the reaction of Detective Meese when confronted with the use of the name demonstrated that when he was uncertain as to why he had used the name, he was prepared to make an assumption that the accused had earlier used that name.
The next question to which counsel drew attention occurred after the interview had been suspended between 12.46 pm and 12.55 pm. When the interview resumed, the accused was again cautioned and informed of his rights. After those formal questions, Detective Meese asked the following question which I have set out in a manner which, from hearing the audio recording, I find accurately reflects the way the question was asked:
Q...... We finished off the previous interview, you were saying that you had gone and got the bikes, and, just looking at Detective Sergeant Dowell’s notes here, when you’ve knocked on the door the second time you also had to be let in by Andrew [Staker].”
Sergeant Dowell had been making notes in a narrative form of the accused’s responses. Having listened to the tape, I am satisfied that Detective Meese was not suggesting the topics mentioned in his question were recorded in the notes. He was making the observation that, at that particular moment, he was looking at Sergeant Dowell’s notes.
Prior to the cessation of the interview between 12.46 pm and 12.55 pm, there had been reference to the accused leaving the premises on a second occasion and knocking on the door a second time. However, there had been no mention of the accused having “gone and got the bikes”. The only mention of the bikes prior to this question was in the following passage:
“Q.... Did you go in any other room apart from the lounge room.
A.I went into the kitchen to get the keys.
Q...... Keys for what.
A.For the bikes.”
While the accused had spoken of taking stolen items outside to the car, he had not made any mention of going to the motor bikes. Detective Meese had knowledge that motor bikes had been stolen from information provided to him in the written material from South Australia. Detective Meese suggested that he may have been thinking of the keys that had previously been mentioned and that he was “getting ahead” of himself. Interestingly, Detective Sergeant Dowell later offered the same explanation.
The information provided to Detective Meese did not contain a direct reference to the accused as having “gone and got the bikes”. An inference that he did so was open because he was the one who was moving in and out of the premises and who had obtained the keys to the motor bikes. However, bearing in mind other evidence by Detective Meese that he was interested in motor bikes and there was some discussion between him and the accused about the topic of motor bikes, I have reached the view that it is likely that during the break there was some mention by the accused of having “got the bikes” during the events in South Australia.
In addition to those passages in the interview, counsel referred to a piece of information possessed by the accused that he said could only have come to the attention of the accused if there had been a discussion during the break. It concerned the topic of fingerprints. There is no reference to fingerprints in the record of interview.
During cross-examination, counsel for the accused asked about a fingerprint in the following passage (p 93):
“Q.... Incidentally, were you told by the police that Mr Cvitko’s fingerprint was on a bike, or fingerprints.
A.Not that I recall.
Q...... That is the sort of thing that might get mentioned if you are aware of it.
A.It is not something that I would mention to the offender.
Q...... Why not. It is pretty hard to explain on the bike, in circumstances such as this, unless you were involved, isn’t it.
A.My practice is to ask questions in relation to the property, not to say ‘your fingerprints have been found here’.
Q...... If he had an explanation for that, that might be the basis for the question, might it not.
A.Could be.
Q...... Did you ask that question.
A.No.”
At the time of the interview, through the written synopsis provided by the South Australian police officers, Detective Meese had been given the following information:
“18). Fingerprint Section have checked a fingerprint located on the Harley Davidson recovered from Kakoschke’s house, and they can rule out all known people associated with this enquiry except Edvino (Eddy) CVITKO. The fingerprint quality is not satisfactory for use in court.”
Importantly, when counsel asked whether Detective Meese had been told that the accused’s fingerprint was on a bike, neither counsel nor the accused had seen the written synopsis. There is no suggestion that an officer of the DPP or that any police officer other than the officers in Victoria had mentioned a fingerprint on a motor bike to the accused or to his legal advisors. Counsel’s only source of knowledge as to the existence of the fingerprint was the accused. I am satisfied that the accused possessed knowledge of a fingerprint on a motorbike and that the source of his knowledge was information conveyed to him by Detective Meese or Sergeant Dowell. As there is no mention of a fingerprint in the record of interview, that information must have been conveyed to the accused by one of those officers during the break in the interview. In view of my previous finding that there was some discussion about motorbikes during the break, it is not surprising that mention might have been made of a fingerprint on a motorbike.
By the time counsel for the accused came to cross-examine Sergeant Dowell, he had been provided with a copy of the synopsis in which reference was made to the incomplete fingerprint. Counsel cross-examined Sergeant Dowell about the topic. In order to appreciate the significance of Sergeant Dowell’s reaction, it is necessary to set out the relevant passages of cross-examination (p 168-9):
“Q.... He was also, I suggest, told that his fingerprint had been found on a motorcycle in that break.
A.Not to my knowledge.
Q...... You had that information, didn’t you, in the synopsis.
A.I can’t remember the synopsis.
Q...... Perhaps we show it to you.
A.I briefly read it. No, it was nothing that was really on my mind. No, I say I didn’t know he had a partial fingerprint on a motorbike.
Q...... Partial fingerprint.
A.Didn’t you say that?
Q...... No.
A.What did you say then?
Q...... No, I said ‘fingerprint’.
A.I think you said partial fingerprint.
Q...... I don’t think so.
A.My recollection is that is why you said partial.
Q...... We can check the transcript.
A.We can.”
It is apparent from that passage of evidence that Sergeant Dowell and not counsel for the accused first mentioned a “partial” fingerprint. Contrary to the impression that he endeavoured to convey, Sergeant Dowell clearly had in mind the existence of a fingerprint which was not complete. I do not accept his evidence that, at the time he and Detective Meese were dealing with the accused, Sergeant Dowell was not aware of the information in the synopsis about an incomplete fingerprint on the motorbike. His answer was a classic slip in letting out information that he was seeking to deny he possessed. In addition, in that passage of evidence and in evidence to which I am about to refer, Sergeant Dowell demonstrated that he was willing to make up answers on the spot.
During cross-examination, another area of particular concern arose in connection with the evidence of Sergeant Dowell. Prior to the commencement of the trial, the accused served upon the Director of Public Prosecutions a rule 9 notice specifying that objection would be taken to the admissibility of the record of interview on the following basis:
“Threats were made and inducements offered by Victorian police officers as a consequence of which the applicant spoke to Victorian police officers about the allegation.”
No details were given of the nature of the threats or inducements. There was no reference in the rule 9 notice to a “deal”. In possession only of the limited information in the rule 9 notice, on 22 February 2001 Ms Kleinig of the Office of the Director of Public Prosecutions rang Sergeant Dowell to inquire as to the basis upon which Ms Spraggs was being held at the police station and to ascertain what had occurred during the two and half hour break in the interview. As will become apparent, the information was significant and, not surprisingly, Ms Kleinig immediately spoke with counsel about that information. The following morning she made notes of the topics and conversation which she said accurately reflected the substance of what Sergeant Dowell told her.
Ms Kleinig said she told Sergeant Dowell that she was interested in finding out the basis on which Ms Spraggs was held at the police station and she wanted to know what had happened during the break in the interview. She was persistent in her questioning as, at times, Sergeant Dowell was not responding to the sense of her questions. After discussion about Ms Spraggs, Ms Kleinig told Sergeant Dowell she was particularly interested in what had happened during the break in the interview. Sergeant Dowell said that he and Detective Meese were busy communicating with South Australian officers about the circumstances of the matter and that the statement of the female occupant of the premises was sent to Victoria and read by them. She asked whether they spoke to the accused at all during that period. She recorded in her notes the substance of Sergeant Dowell’s response, but the response was not given in one answer. It came in answer to prompting type questions that Ms Kleinig asked while receiving the information. The note reads as follows:
“* query did you speak to Cvitko at all during that period?
*...... he says, yes, nice sunny day, took Cvitko outside for a smoke, talking about his brother who had done some time in Victoria, general informal chit chat. Didn’t talk about what we were going to interview him on, make it a practice not to do that. He was worried about Joanna and didn’t want her charged with anything. We were happy to make an arrangement/deal (not sure of which word used) with him about that. He says I guess you didn’t want me saying that.
*I said you can only say what you can say.”
As mentioned, prior to speaking with Sergeant Dowell, Ms Kleinig did not have any of the information that her note discloses was given to her by Sergeant Dowell. She did not know that there would be an allegation by the accused that he was worried about Ms Spraggs and did not want her charged with anything. She did not know the accused would be making an allegation that a deal was done in connection with the accused answering questions and Ms Spraggs not being charged.
Sergeant Dowell gave evidence prior to Ms Kleinig. Counsel for the accused was in possession of Ms Kleinig’s notes. He first put to Sergeant Dowell the substance of the conversation reflected by the notes concerning Ms Spraggs. Sergeant Dowell did not dispute that the matters put to him were discussed. He agreed that Ms Kleinig sought information as to what occurred in the break between the interviews. He accepted that he would have told her that he and Detective Meese were communicating with South Australia and were obtaining the statement of the female occupant. Sergeant Dowell then gave the following evidence (pp 172-174):
“Q.... She [Ms Kleinig] then said ‘Did you speak to Cvitko at all during that period?
A.Yes.
Q...... You said ‘Yes. It was a nice sunny day, we took Cvitko outside for a smoke, talked about his brother who had done some time in Victoria, general informal chit chat. Didn’t talk about what we were going to interview him on, we make it a practice not do to that’. Did you say that.
A.Maybe words to those effects. I don’t know, but if she is writing it down, I must have.
Q...... You must have, mustn’t you. You are not disputing any of this, I take it, not so far anyway.
A.Not the exact wording, but the general gist of it.
Q...... I suggest that you went on to say that Cvitko was worried about Joanna and didn’t want her charged with anything. Did you say that to Louise Kleinig, or words to that effect; that Cvitko was worried about Joanna and didn’t want her charged with anything.
A.Don’t think I would have, no.
Q...... I suggest you then said ‘We were happy to make a deal or an arrangement with him about that’.
A.Words to that effect were said.
Q...... Then you said to her ‘I guess you didn’t want me saying that’, didn’t you.
A.No. I will tell you now what was said in relation to that part.
Q...... You tell us.
A.I am. Ms Kleinig was speaking to me on the phone and she said ‘It has been alleged that there was a deal made’, I said ‘There was no deal made’. She said ‘It had been alleged that there was a deal made where Joanna Spraggs wouldn’t be charged’ and I said ‘No, that’s not true’. She kept pressing the point ‘but it’s been alleged’, and I think three times she said that to me, and I said ‘Look, yes, we took him outside, we made a deal. Is that what you want me to say?’. Because I was pressured - I had already told her there was no deal done, she kept at me. It wasn’t a statement, it was a comment, it was a throwaway line. I wished I never ever said it, but I said it to someone over the phone who was starting to get me upset by pushing and pushing a point where I already told her there was no inducement, deal or anything made. She had been told that three times, three times, and she kept pressuring me. I thought ‘all right’. It was a throwaway line in that sense, there was nothing in it. I mean, I am not going to say things like that. I have been in the police force 25 years, I am not that silly.
Q...... Perhaps it was an unguarded but truthful comment.
A.It was not a truthful comment, it was a throwaway line because I had been a bit frustrated with the woman who kept at me.
Q...... There is no doubt at all on three separate occasions in that conversation you told her there was no deal.
A.That’s correct. She said ‘Was there an inducement?’ - I don’t think the word ‘inducement’ is in there at all, and I said ‘There was no inducement’ and she said three times that it’s been alleged and I said there was no, no, no and I was getting wild, and that’s why I said it, and I’m wild now.
Q...... I suggest to you that you are lying.
A.I am telling you I am not a liar, and I do not like being called a liar. That is the third time you have done it, and I’m not a liar.
Q...... Did you say to her ‘I guess you didn’t want me saying that’.
A.No, I did not. I said ‘If that’s what you want to say’.
Q...... Did you say that because you knew the significance of the comment you have just made.
A.No. I said ‘if that is what you want to say’. It was a throw away line, a comment.”

The evidence of Sergeant Dowell was in direct conflict with that of Ms Kleinig. As to the proposition that she pressed Sergeant Dowell three times to the effect that it had been alleged that there was a deal made and that, after Sergeant Dowell repeated that there was no deal, he eventually said in a throwaway line that they had taken him outside and made a deal and added “is that what you want me to say”, Ms Kleinig stated positively that such a version was not true.
Ms Kleinig was a thoughtful and most impressive witness. By way of contrast, this was the second area of evidence in which I gained the strong impression that Sergeant Dowell was prepared to make up his answers on the spot. I have no hesitation in accepting the evidence of Ms Kleinig in preference to that of Sergeant Dowell. I am satisfied that Ms Kleinig has accurately recorded the substance of the conversation in her notes. In particular, I am satisfied that Sergeant Dowell told Ms Kleinig that the accused was worried about Ms Spraggs and did not want her charged with anything. Further, I am satisfied that Sergeant Dowell said that he and Detective Meese were happy to make an arrangement or deal with the accused about Ms Spraggs. I am also satisfied that having made those statements, Sergeant Dowell said to Ms Kleinig words to the effect that he guessed she did not want him saying that.
The evidence of Ms Kleinig establishes that Sergeant Dowell made a previous statement which is inconsistent with his evidence in this court. He did not acknowledge the truth of the prior statement. In those circumstances, the ordinary rules of evidence dictate that the prior statement is not evidence of the truth of the statements made. It is only evidence of a prior statement that is inconsistent with Sergeant Dowell’s evidence.
While the statement is not evidence that the accused was worried about Ms Spraggs and did not want her charged with anything, and is not evidence that the officers were happy to or did make an arrangement or deal with the accused about Ms Spraggs, the statement by Sergeant Dowell that “I guess you didn’t want me saying that” is evidence of Sergeant Dowell’s state of mind. That particular statement demonstrates a belief on the part of Sergeant Dowell that, as an officer of the Office of Director of Public Prosecutions, Ms Kleinig would not want Sergeant Dowell to say to her that he or Detective Meese were happy to make a deal or arrangement with the accused about Ms Spraggs not being charged. Sergeant Dowell believed that if he acknowledged that a deal had been made in connection with Ms Spraggs not being charged, in some way that acknowledgment would be adverse to the prosecution case. I am satisfied that Sergeant Dowell believed that if he acknowledged that a deal had been made, an inference might be drawn as to the existence of a deal and the existence of a deal might impact adversely upon the admissibility of the interview subsequently conducted with the accused.
As previously indicated, I am satisfied that the accused volunteered the remark about cutting the hair. At that time the accused was aware that he was to be interviewed in connection with the events in South Australia which included an allegation of rape. During the break of approximately two and a half hours, there was more discussion about the events in South Australia than the detectives were willing to admit. In particular, the taking of the motor bikes and the existence of a fingerprint on a motorbike was discussed. In my view it is likely that upon resumption of the interview, when the accused spoke of what he had previously said, he was referring to admissions that he had made to the officers during the break. I am unable to determine, however, how much of the events was canvassed during the break.
I am also satisfied that the accused was very concerned about the welfare of Ms Spraggs. He did not want her charged with any offences. It is likely that during the break the police conveyed to the accused that Ms Spraggs would not be charged with any offence. However, I am not able to determine what was said in that regard.
Notwithstanding the matters adverse to the credit of Sergeant Dowell and Detective Meese to which I have referred, as discussed later in these reasons I accept their evidence that they believed that in dealing with the accused they were governed by the procedures specified in s 464 of the Crimes Act. However, I have no doubt that they thought that in having the conversation with the accused during the break about the events in South Australia, they were acting in contravention of s 464. Their belief in that regard provided them with a motive to deny the existence of any conversation of substance. In these circumstances, it does not follow from my rejection of their denials of conversations during the break about the events that a positive finding should be made that the officers engaged in conduct that was inappropriate for a reason other than a contravention of s 464. In particular, it does not follow that a positive finding should be made that the officers agreed not to charge Ms Spraggs in circumstances which amounted to a threat or inducement to the accused to answer their questions.
As I have already indicated, I am satisfied that the police officers indicated to the accused that Ms Spraggs would not be charged. I do not know, however, precisely what was said or whether it was said in circumstances which could reasonably lead to a view that the decision of the accused to answer questions might not have been voluntary. The accused did not give evidence and the allegations put during cross-examination do not amount to evidence. In these circumstances I must draw inferences, if I can, from the evidence that has been given.
At the outset of the interview and before the break the accused readily communicated with the police officers. He was told of the topics upon which he was to be interviewed and given an appropriate caution that he was not obliged to answer any questions. Having indicated that he wished to contact a legal representative, when the interview was suspended the accused volunteered the remark about the hair to which I have referred. When the interview resumed two and a half hours later, the caution was repeated and the accused confirmed that he had decided not to speak to his solicitor. He also confirmed that he had expressed a desire to speak further about the South Australian events and that he was happy to continue with the interview. As mentioned previously, there is no hint of reluctance in any of the conduct of the accused. He subsequently consented to the forensic procedures and signed a narrative statement. When asked later in the day about the way he had been treated by the detectives, he described that treatment as “good”. I accept the evidence of the officers that, during the break, the accused was behaving in a friendly manner. I should add that there is no suggestion that the accused gave a version that he now says is false in any respect. While there are differences between his version and the statements of the victims, in substantial respects it appears that the accused gave a version consistent with the statements of the victims.
Finally, it is appropriate to refer to the conduct of the accused when the South Australian detectives first spoke with him on the morning of 9 March 2000. They met the accused in an interview room at the Preston Police Station. When they walked into the interview room, Detective Johnson started to introduce himself and the other officer, but the accused quickly interrupted the introduction. Detective Johnson described that interruption in the following terms (p 245):
“Mr Cvitko quickly interrupted our introduction and made it quite clear that he wanted to enter the witness protection programme, he wanted a new identity, he wanted housing, he wanted a car, he wanted a job, he wanted protection and he wanted to give evidence against Mr Staker. He interrupted our introduction to state that to us quite clearly, without us having an opportunity to fully introduce ourselves.”
Detective Johnson disabused the accused of any prospect that he could be treated as a witness and put into the witness protection programme. Detective Johnson told the accused that there was sufficient evidence against Staker and it was a pointless exercise.
Later that day, the South Australian officers accompanied the accused back to South Australia. Detective Johnson described the accused as very willing to cooperate and participate in another interview. He said that on the plane the accused made it clear to him that he was disgusted about the sexual aspect of the offence committed by Staker and that he was remorseful for that conduct. Detective Johnson said the accused made it clear that he felt he was compelled to set the record straight, that it was Staker’s idea and Staker’s doing. The officer described the accused as annoyed at the fact that he could even be considered or thought of as having been part of the rape. Detective Johnson described the accused as saying that he wanted to cooperate fully. That cooperation came to fruition later at the Port Adelaide Police Station when the accused freely participated in a lengthy record of interview.
I have viewed sections of the video tape recording of the interview conducted by the South Australian officers. The accused was cooperative and relaxed throughout. At the outset he made a remark about the Victorian officers allowing him to smoke. Early in the interview, he freely stated that he would cooperate fully. His demeanour was relaxed and he frequently used his hands in a demonstrative manner when giving answers. At times his answers were quite animated, in particular when repeating words he said were spoken by Staker.
I accept the evidence of Detective Johnson. I am satisfied that the accused’s desire to give his version to the South Australian officers was not brought about by the fact that he had already made admissions and committed himself to a version during questioning in Victoria. His desire in that regard was a reflection of the accused’s desire to cooperate and give his version throughout his dealings with the police.
When the evidence is viewed in its entirety, I am satisfied that in Victoria the accused wanted to convey his side of the story to the police. He wanted to ensure that the police understood the nature of his involvement and to appreciate that he was not involved in any offences of rape. In that frame of mind, during the break he was probably keen to discuss the events. As I have already indicated, I am not in a position to determine how much of the events was the subject of discussion. Not surprisingly the accused was anxious about the position of Ms Spraggs and her position was probably discussed. However, I am unable to make a finding as to what was said. Notwithstanding my finding the position of Ms Spraggs was probably discussed, in my view it is probable that any indication by the police officers that she would not be charged did not have any influence upon the decision of the accused to give his version to the police. He was anxious to give that version and would have done so regardless of what was said about Ms Spraggs.
During submissions, the Crown suggested that the state of the evidence was such that I might not be in a position to determine the facts necessary to make a finding that the answers of the accused to the Victorian police officers were given voluntarily. However, in my opinion the Crown concession was made without full regard to the totality of the evidence relevant to the issue of voluntariness. Bearing in mind the warnings issued by the High Court as to the width of the operation of the voluntariness rule, I have reached the view on the balance of probabilities that the answers were given by the accused voluntarily. The accused was anxious to cooperate and to give his version of the events and his decision in that regard was not brought about by any conduct on the part of the Victorian police officers.
As to the exercise of my discretion to exclude the first record of interview, counsel relied primarily upon a failure to comply with the provisions of the Service and Execution of Process Act. As mentioned, the accused was not brought before a court until between 2.45 pm and 5 pm. He could have been brought before the court at 10 am. The warrant of apprehension issued in South Australia directed that, following apprehension, the accused be brought before a court “as soon as practicable”. The Service and Execution of Process Act is a code governing the apprehension and management of persons arrested interstate on a warrant issued in the State where the crime was committed: R v Forrest (1988) 35 ACrimR 421 and R v Bondareff (1999) 74 SASR 351. Section 83(1) of that Act required that the accused be taken before a Magistrate “as soon as practicable after being apprehended”.
The Victorian officers failed to comply with the requirements of the warrant and the Service and Execution of Process Act. Both Detective Meese and Sergeant Dowell gave evidence that they thought their obligations were governed by the provisions of the Crimes Act. I accept their evidence in that regard and that they believed they were entitled to conduct an interview with the accused before bringing him before a Magistrate. However, neither of those officers made any attempt to familiarise themselves with the terms of the warrant pursuant to which they arrested the accused. Sergeant Dowell is a supervising officer of considerable experience. It is not unreasonable to expect all officers, particularly those in positions of seniority and responsibility, to familiarise themselves with warrants that authorise the arrest of persons wanted interstate. Similarly, it is not unreasonable to expect such officers to be familiar with the essential provisions of the Service and Execution of Process Act.
There are other factors that require careful attention in considering the exercise of the discretion. Although the Service and Execution of Process Act is a code, there remains room for the operation of the Crimes Act. It is not necessary to determine the extent to which the provisions of the Crimes Act can apply. The Service and Execution of Process Act does not appear to exclude the operation of s 464H of the Crimes Act in connection with the requirements of recording and conditions of admissibility. As mentioned, the Victorian officers believed that, pursuant to s 464 of the Crimes Act, they were entitled to interview the accused prior to bringing him before the Magistrates Court. However, as I have indicated, I am satisfied that during the break when the audio recording equipment was not operating the officers knowingly acted in breach of the spirit of s 464H of the Crimes Act. The intention of s 464H is that admissions should be tape recorded where facilities are available. Any discussion during the break about events in South Australia should have been recorded. I have reached the view that the officers deliberately ignored the requirements of s 464H in this regard. In addition, they were not frank with this Court about the discussions that occurred during the break.
The approach to be taken to the question of discretionary exclusion following unlawful or improper conduct by the authorities has been the subject of discussion in numerous High Court authorities since Bunning v Cross (1978) 141 CLR 54. It is unnecessary to canvass those authorities. In R v Swaffield (1998) 192 CLR 159 at 194 - 195 the majority identified a new approach in the following terms:
“[It is a better approach to think] of admissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is brought at a price which is unacceptable, having regard to contemporary community standards.”
Kirby J supported that re-expression of the tests of admissibility and discretionary exclusion. His Honour pointed out that the consideration of the overall judicial discretion permitted attention to be given to factors which, in the past, the High Court had accepted as relevant.
The Victorian police officers failed to comply with the provisions of the Service and Execution of Process Act. The accused was being held unlawfully at the police station during the second part of the interview. As pointed out by Mullighan J in Bondareff, the legislative intention found in the provisions of the Service and Execution of Process Act tells against the admission of the evidence. The investigating officers made no attempt to familiarise themselves with the terms of the warrant or to consider the application of the Service and Execution of Process Act. They held the accused in custody for several hours before bringing him before a Magistrate in a court that was immediately next door to the police station. They deliberately flouted the spirit of the Crimes Act which they considered governed their dealings with the accused.
The combination of circumstances to which I have referred leads me to the view that this is an appropriate case in which to exercise my discretion to exclude evidence of the interview conducted by the Victorian police officers between 12.06 pm and 1.23 pm on 8 March 2000.
As to the admission of the record of interview conducted by the South Australian detectives following the return of the accused to South Australia, I have already canvassed the circumstances of the meeting between those officers and the accused at the Preston Police Station and of the conversation that occurred on the plane during the return journey. I have no doubt that the accused was anxious to cooperate with the South Australian officers and to give his version of the relevant events. As indicated earlier in these reasons, I am satisfied that his desire to cooperate and to give his version to the South Australian officers was not brought about by any inappropriate conduct on the part of the Victorian police officers or by the fact that he had already given a version while in Victoria. This is not a case in which the conduct of the Victorian officers can properly be said to have tainted the later interview (cf R v Amad 1962 VR 545).
Counsel for the accused highlighted the reference by the questioning officer to the narrative statement made in Victoria and the statement by the interviewer to the effect that there were a few things in the narrative statement that the officers wished to clarify. He pointed out that the following interview was not a clarification. It was a complete examination of the events in detail. In my opinion nothing turns on this point.
In all circumstances I am satisfied that it is not appropriate to exercise my discretion to exclude the interview in South Australia either in the exercise of the discretion enunciated in Swaffield or in the exercise of the general unfairness discretion identified in R v Lobban (2000) 77 SASR 24.

[2001] SASC 72

1 March 2001