R v Deed No. Sccrm-01-371

R v DEED
[2002] SASC 151
In the Criminal Jurisdiction : Voir Dire Ruling

Olsson AuJ:
In this matter the accused is charged with having murdered Gerald Stephen Cook at Lyrup on 8 March 2001.
Her counsel has filed an application, pursuant to Rule 9 of the Supreme Court Criminal Rules, for an order that the Crown not be permitted to lead evidence of a conversation said to have been had by the accused with the proposed witness Ronald Andrew Welsh on 1 July 2001.
In order to appreciate the issues arising on the application it is necessary, first, to review the outline facts upon which the Crown will seek to rely, as they emerge from the declarations filed and the evidence on the voir dire.
The accused and Welsh were, initially, jointly presented for trial on an information that, on the occasion in question, they murdered the deceased Cook.
The deceased's body was discovered, on 14 March 2001, in the water near the bank of the River Murray, a short distance upstream from the Lyrup Ferry. At autopsy, the body was found to be in a state of considerable putrefaction and there was evidence of what was described as “heavy post-mortem predation, presumably due to yabbies”. A good deal of tissue was missing in the upper portion of the body.
At autopsy, the pathologist was unable to determine any specific cause of death, due to the state of the body.
The accused Welsh was interviewed by police officers on several occasions.
Initially, he told them that he and his wife had been living with the accused Deed and her son Dan at her home at 48 Sims Parade, Renmark. He said that Dan had been bashed by the deceased on the night of 2nd March, in an incident which had occurred at Renmark, as a result of which the former had been admitted to hospital. Welsh asserted that, on the evening of 8 March, he brought the deceased from Berri to Renmark for the purpose of apologising to Deed and members of her family for some of his conduct on the night of the 2nd and on an earlier occasion late in 2001.
Welsh told the police that the deceased came to the Sims Parade house and duly made his apologies, which, seemingly, were accepted. He maintained that, at about 11 p.m., he and his co-accused drove the deceased to the Shell service station at the main road, where, at Mr Cook's request, they dropped him off. They had not subsequently seen him. They had no idea what happened to him thereafter.
It is the Crown case that Welsh subsequently changed his story.
On the morning of 30 June 2001, Welsh was at the Berri police station, having just been bailed in relation to an unrelated matter. He there spoke with Detective Sergeant Boileau.
Upon the latter asking him "What did happen to Gerry [the deceased]?" The following dialogue is said to have been ensued --
Welsh:     "I feel like shit. I can't wear it any more."
Boileau:    "Why is that?"
Welsh:     "Gerry's death is really bothering me. Adele knocked him, strangled him with a cord out some pants or something. Killed him she did. I was supposed to be there to hit with a baseball bat that's all. She knocked him."
Boileau thereafter thereupon requested Welsh to submit to what proved to be a series of formal records of interview. The first commenced at 11:35 am on 30 June 2001 and concluded at 12:10 pm.
In the course of them Welsh, inter alia, asserted that –
· His previously related version of events was not correct;
·After the deceased had spoken with the co-accused Deed and her family, he got into the car with Welsh and Deed, apparently on the understanding that they would be driving him back to Berri;
·As the vehicle approached the Lyrup turnoff, Deed instructed Welsh (who was driving) to turn left at that point;
·Near the Lyrup Ferry crossing Welsh turned left and entered the Lyrup Reserve, stopping near a rubbish bin;
·The accused Deed got out and said that she wished to urinate. The others also got out and the deceased commenced to urinate;
·While the deceased was out of the car Deed hit him, so that he fell to the ground. She then jumped on him, abused him verbally for what he had done, pulled a tracksuit pants cord out of her pocket, wrapped it around his throat and strangled him;
·Deed thereafter dragged the deceased's body down to the edge of the river, where there were some reeds, and pushed it into the water. As he was dragged, the deceased's jeans came off. He had not been wearing shoes, so that the body remained clothed only in a T-shirt.
Welsh contended that, although it was originally intended that he strike the deceased with a baseball bat, he did not do so, because, at the critical time, he could not find it in the car. He asserted that he did not participate in the actual assault on the deceased, or the strangling, but he did assist in dragging the body to the river, and later disposed of the deceased's jeans. He told the police that Deed had expected him to hit the deceased with a baseball bat and, at one stage, had given him the cord in the car, with the apparent expectation that he would strangle the deceased. Welsh said that he had not been able to bring himself to do those things.
During a re-enactment demonstration to the police on 1 July 2001, Welsh volunteered that he had, in fact, initially pushed the deceased over onto the ground and the accused Deed had then jumped on him and strangled him. At that time Welsh said he had actually twisted the deceased's arm up behind him as he forced him to the ground; and may have broken or dislocated it in the process. He was somewhat confused as to whether the deceased was face up or face down on the ground. He conceded that he made no attempt to stop the strangling. At the time of the re-enactment, Welsh conceded that he had taken a baseball bat out of the car and placed it on the roof - but said that he did not use it.
On 1 July 2001, Welsh cooperated with the police by having a discussion with the accused Deed whilst wearing an activated listing device. A transcript of the conversation is said to imply complicity on her part in the death of the deceased and an agreement to tell a false story about dropping the deceased off at the Shell service station. At that stage the accused Deed had neither been interviewed by the police nor charged.
I accept the evidence of Detective Keane that, at that point, the police only had the revised assertions of Mr Welsh to go on and they did not know whether to believe him or not. They considered that some steps needed to be taken to seek corroboration of his alleged version of events. They therefore asked him whether he would be prepared to wear the listing device in question and enter into a general discussion with the accused Deed, without asking her interrogative questions. He readily agreed to do so. It was the police hope that, in the course of such conversation, Mrs Deed might volunteer information at which would be of a corroborative nature.
As Detective Sergeant Boileau said, up until 30 June, the police investigation was going nowhere, particularly as it had proved impossible to establish a cause of death. When Welsh gave his second record of interview, Detective Sergeant Boileau did not know whether to believe him or not. I do not wonder at this, as Welsh was well (and, I infer, unfavourably) known to the police and it appears that all sorts of rumours were circulating in the Riverland, concerning the death of the deceased.
It is, of course, true that the police had also conducted a record of interview with Mrs Welsh, commencing at 12:40 pm on 30 June 2001. However, throughout it, she made long, rambling responses to questions and it is almost impossible to derive from them any truly coherent narrative. At best, she said that she formed the understanding that Mrs Deed had, somehow, been involved in the killing of Mr Cook. This seemed to be largely the product of what Mr Welsh had said to her.
It was, accordingly, small wonder that the police officers were looking for a sounder basis of evidence on which to sheet home criminal responsibility to Mrs Deed. This is particularly so as any statement made by Welsh could not have been used against Mrs Deed, in any event, unless he ultimately agreed to give evidence for the Crown. As it was, he was charged with murder the day following the recorded conversation with Mrs Deed and it was not until the case was looming for trial that he pleaded to a lesser charge and, in fact, agreed to give evidence.
I accept that, as at 1 July 2001, the police genuinely believed that they were not justified in charging the accused, without first attempting to secure some support for the revised story told by Welsh. In my view the steps taken to arrange for Welsh to engage in conversation, without interrogating her, were done bona fide and entirely reasonable in the circumstances.
Moreover, as it happened, the representations made by Welsh to the accused, in the course of the conversation between himself and Mrs Deed were, in the main, correct. He had been in serious trouble with the police for his threatening conduct towards a man called Armstrong and had been twice arrested on 30 June 2001 -- initially for committing certain alleged offences and then for breach of police bail.
On any view, he was, as he indicated to Mrs Deed, in serious trouble. His suggestion that the police had told him that he was up for 15 to 20 years in respect of the death of Mr Cook and that the police knew far more than he imagined was entirely his own concoction, based, he said, on his knowledge gained when he had served a prison term for some earlier offence. I am satisfied that the police did not suggest that he make such statements. Both Detective Keane and Detective Sergeant Boileau were patently honest witnesses and I accept the general thrust of their evidence.
When spoken to by the police on the following day, the accused Deed denied any involvement in the death of the deceased, refuted the story told by Welsh, declined to participate in a detailed record of interview and sought the assistance of a solicitor. She was arrested and charged with murder.
Shortly before trial, the Crown accepted a plea of guilty by Welsh to the lesser offence of assisting a principal offender (CLCA s241). He is due to be sentenced in respect of that offence in the course of the next few days and has undertaken to give evidence for the Crown against the accused.
The grounds of the present Rule 9 application are expressed as under -
“A.The recording of the conversation was not authorised by a warrant under the Listening Devices Act.
B.At the time of the recording of the conversation the police had sufficient evidence to arrest the accused for the offence of murder and in those circumstances would have been obliged to caution the accused prior to embarking upon any conversation with her.
C.Ronald Andrew Welsh at the time of the recording of the conversation was :-
a friend of the accused;
the agent of the police;
an accomplice in the crime;
likely to be charged with and offence related to the crime;
and therefore was a person motivated to prove his innocence by obtaining admissions from the accused.
D.The conversation between the accused and Ronald Andrew Welsh occurred in derogation of the accused's fundamental right to speak or remained silent, and further the manner and circumstances of the questioning of the accused by Ronald Andrew Welsh was misleading and unfair.
E.The admission of the evidence of the conversation at the accused's trial would be unfair."
On the hearing of the application I took Mr Algie, of counsel for the accused, to concede that published authority was against him as to the first ground and to intimate that he did not press it. It is, therefore, unnecessary to discuss this aspect.
As to the other grounds, Mr Algie seeks to rely on what he says are the principles stemming from authorities such as The Queen v Swaffield (1998) 129 CLR 159, R v Pfennig (No 1) (1992) 57 SASR 507, and R v Smith (1994) 63 SASR 123.
The last-mentioned authorities were canvassed by me in some detail in R v Burns & Ors [1999] SASC 493 ("Burns"). Having considered the submissions of Mr Algie and those of Mr Snopek, of counsel for the Crown, I adhere to the conclusions come to by me in Burns, as expressed in paragraphs 118 to 152 inclusive of my ruling in that case.
As the last-mentioned ruling has not been reported, it is necessary that I retraverse some of the relevant ground in rather more detail than might otherwise be required.
In Swaffield the majority took, as their commencement point, the following dictum of Brennan J. (as he then was) in Duke v The Queen (1989) 180 CLR 508 at 531 -
“The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded.”
As I pointed out in Burns, the majority rejected any suggestion that either the fairness or policy discretions were founded on any notion of compulsion to speak, contrary to the right to silence. They said-
“However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.”
I further made the point that, in Swaffield, one of the situations under consideration was that an accused had been taken into custody and had exercised his right of silence. He was not charged at that stage and was released. The police then persuaded a close friend of the accused, who was fitted with a recording device, to speak with him. In the course of the ensuing conversation, the accused made admissions concerning the killing of the relevant deceased. The accused was thereafter charged with and convicted of murder. The evidence of his statements to his friend was held to be properly admissible. The point was made that, whilst the impugned admissions had been made in course of a conversation which the friend admittedly stimulated, it could not be said that there had been an interrogation of the accused by the police or their agent in an impermissible manner. Nor could it be said that the statements in question had been elicited by "a person in authority", within the principle relating to the right to silence.
In Burns I expressed the opinion that the decision in Swaffield was along parallel lines with the outcomes in the cases of The Queen v Goncalves (1997) 99 A Crim R 193, and The Queen v Davidson (1996) 92 A Crim R 1. The last-mentioned two cases both involved the utilisation, by the police, of persons known to a suspect to obtain admissions from the suspect, which were recorded by hidden listening devices on their bodies. In each case it was held that there had been no infringement of the right of silence, the persons concerned not being persons in authority; and that the suspect would have had no reason to suppose that he was under any compulsion to speak as he did.
I acknowledged that, in the two cases of Pfennig and Smith, Cox J. and Perry J. respectively excluded evidence of incriminating admissions made by an accused to another person known to him, where that person had agreed to assist the police by obtaining those admissions.
Having reviewed the relevant decisions I said-
“142.        It is instructive to read the foregoing decisions in light of what was said by Cox J. in Pfennig. He there rejected evidence of incriminating admissions made by the accused, whilst in custody, to another person who, at the instance of the police, had purported to befriend him solely for the purpose of gaining admissions. This was after the accused had been remanded in custody on a charge of murder and, on legal advice, had exercised his right of silence. Cox J. rejected the evidence on the basis that the police had implemented a deliberate strategy to circumvent the accused's refusal to answer questions, during which their agent specifically embarked on a course of deception designed to win the accused's confidence and persuade him to make incriminating statements. The person concerned pretended that he, himself, was under police investigation for murder.
143.           Cox J. was of opinion that the practical reality of the scheme was that the person who misrepresented himself to the accused was in a position little different to that of an undercover police officer who improperly set out to interrogate someone who had already exercised a right to silence.
144.        In Smith, Perry J. adopted an approach similar to that of Cox J. One of several persons said to have been implicated in a cold-blooded murder agreed to assist police, in return for immunity from prosecution. At the instigation of the police he engaged in conversation with one of the accused, with a view to catalysing incriminating statements and recording them on a concealed audio device. That accused had not previously been questioned by the police. Perry J. excluded the evidence ‘particularly having regard to the fact that police interrogation of Turner would necessarily have carried with it an obligation to caution’ and ‘the admissions in question… were elicited by deliberate statements or questions which, in one or two instances… were false’. He also said that, in any event, he bore in mind ‘the unsatisfactory nature of the quality of the tape recordings’.
145.        All of the authorities indicate that each case must be decided in light of its own facts. It is, indeed, a question of degree. However, having said that, I am constrained to comment that, with respect, it is difficult to reconcile the reasoning of Cox J. in Pfennig and that of Perry J. in Smith with that of the High Court in Swaffield and the other authorities adverted to above, although it is certainly lent support by the reasoning expressed in The Queen v Herbert [1990] 2 SCR 151 at 184-185.
146.           The preponderance of relevant authority renders it abundantly clear that the mere use of some lay person with a concealed recording device to engage in conversation with a suspect is not, per se, objectionable, even if it has the practical effect of circumventing the need for a caution. What is objectionable is for such a person to lead a suspect to make incriminating statements by conduct which amounts to deliberate trickery, deception, or inappropriate interrogation of the type that the court cannot condone.
147. It is not to be forgotten that, for example, in several of the authorities to which I have referred, some level of subterfuge was employed to facilitate the admissions, and this was found to be acceptable. As King CJ said in The Queen v Musico (1990-91) 55 SASR 274, ‘there is nothing unfair to an accused person in admitting into evidence statements which he has made to a person in the expectation that that person will not disclose them, provided there has been no trickery or impropriety on the part of persons in authority’. It may, of course, be difficult in some cases, readily, to draw the line between what is and is not acceptable conduct on the part of a lay person, acting in aid of the police, in seeking to elicit information in inculpating a suspect in criminal activity.
148.           However, there is simply no evidence in this case of any conduct on the part of the Federal agents which could possibly fall within the ambit of that condemned in any of the leading authorities. The fact that any of the targets of their listening warrants had exercised a right of silence is in no sense conclusive, per se.
149.          I therefore move onto a consideration of the so-called ‘eavesdropping’ cases such as The Queen v Mills (1962) 46 Cr App R 336 ("Mills") and The Queen v Keeton (1970) 54 Cr App R 267, which are consistent with the reasoning of the majorities in the cases referred to above and apply a conceptually similar logic.
150.        As Winn J said in Mills, it is not the case that where a suspect has been cautioned and has exercise the right to silence, that person is thereafter in ‘a state of asylum’ and, if in custody, the cell into which he is put is his own ‘ castle’ - to the point that he should be entitled to feel himself free from any eavesdropping or potential use against him of anything said during his incarceration. On the contrary, any voluntary statements made may be used against that person. This is consistent with the reasoning in The Queen v Buchan [1964] 1 All ER 502 and The Queen v Stewart [1970] 1 All ER 689. It is also in accord with what fell from Jenkinson and O'Loughlin JJ in Barker v The Queen (1994) 127 ALR 280 at 300-301 ("Barker"). See also The Queen v Maqsud Ali [1966] 1 QB 688 ("Maqsud Ali") and the reasoning of the Supreme Court of Canada in The Queen v Herbert (supra) at 185.
151.           A careful consideration of all of these last-mentioned cases reveals that the overwhelming weight of authority is to the effect that, absent some deliberate trap, deception, trickery or other improper conduct of the investigating authorities, there is no reason why taped intercepts of conversations incriminating accused persons, involving a quite passive role of the investigating authorities (other than actual placement of listening devices), should not be admissible in evidence. The fact that this might follow an exercise of a right of silence is irrelevant."

Against the background of those authorities I now turn to the various grounds relied upon by Mr Algie as the basis for urging that the relevant evidence ought to be excluded in exercise of discretion. These need to be considered both individually and collectively.
It is, of course, true that, at the time of the recording of the relevant conversation, the police may well have been justified in arresting the accused for the offence of murder, had they firmly believed what Welsh had said -- although the absence of corroboration or independent support would have been a very real problem for them. Had they done so they would have been obliged to caution the accused prior to embarking upon any conversation with her.
However, the authorities to which I have referred render it clear that such a situation, taken alone, does not lead to a conclusion that evidence of the impugned conversation should be excluded as improper or unfair.
This was not even a situation in which the accused had already been charged and had exercised a right to silence. Moreover, it could not be said that, given that Welsh was clearly acting in aid of the police, he embarked upon an inappropriate process of interrogating the accused, or some quite unconscionable process of trickery and deception. At most, he simply initiated a general discussion with the accused, which catalysed her voluntary comments concerning what occurred. In truth, to adopt the point made by Macrossan CJ and MacKenzie J, had Welsh, solely on his own initiative, made an approach to the accused to discuss the matter and then offered the information to the police, no occasion for a discretionary exclusion of the evidence would have arisen. (See, for example, The Queen v O'Neill (1995) 81 A Crim R 458.)
The same point may well be made in relation to the several aspects adverted to in the third ground of objection. The combined facts that Welsh was a friend of the accused; but an agent of the police; and an accomplice in the crime who was likely to be charged with an offence relating to that crime; and may therefore well have been motivated to prove his innocence by obtaining admissions from the accused could, perhaps, have been a basis for contending that mere verbal evidence of an alleged conversation ought to be regarded as unreliable and suspect. But that is not to say that such evidence ought to be excluded as being unfair, or as having impugned an accused's freedom to choose to speak or not.
Having regard to the recording of the relevant conversation, there is no question as to the accuracy of what was said (save for any frailties in the recording), or the context in which the conversation took place. Nor can it be suggested that the evidence is inherently unreliable on the face of it, or has been obtained at a price which is unacceptable, having regard to prevailing community standards. To paraphrase the expressions adopted by Brennan CJ in Swaffield , the investigation of crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation.
A suggestion that the conversation between Welsh and the accused occurred in derogation of the accused's fundamental right to speak or remain silent and that the manner and circumstances of the questioning of the accused by Welsh was misleading and unfair simply cannot withstand serious scrutiny. The authorities to which I have referred render it abundantly clear that what occurred was not in derogation of the accused's right to speak or remain silent and it is simply not accurate to describe what occurred as a questioning of the accused by Welsh. True it is that he catalysed the relevant conversation, but the transcript renders it quite clear that he did not set out to interrogate the accused or question her in the sense implied in the ground for exclusion. There was nothing that Welsh said which could reasonably have been described as "deceptive" or "misleading" in a relevant sense, nor did he act in any manner which could properly be described as unfair.
In the course of his oral submissions, Mr Algie contended that one important factor for consideration was that the police failed to observe the mandatory provisions of s 74D of the Summary Offences Act, in that they did not record on videotape the discussions which they had with Welsh in relation to his agreement to engage Mrs Deed in conversation and record it on an audiotape. Mr Algie submitted that this led to the result that was impossible to know what instructions had been given to Welsh and what was his understanding of his role.
There are two simple ripostes to that complaint. The first is that, in considering whether it would be unfair to admit the conversation had between Welsh and Mrs Deed, the situation needs to be examined in relation to his actual conduct towards her and not any instructions that he may have been given. I have already made the point that there was nothing interrogative or otherwise unfair and the way in which Welsh conducted himself at the time.
The second is that, in terms, s 74D is primarily directed at erecting proper protection of persons who are suspects and are, themselves, being questioned. There has been no complaint by Welsh himself as to what occurred and it seems to me that it is scarcely for Mrs Deed to seek to object in relation to a situation which is not of proper concern to her.
Mr Algie also repeatedly pressed a contention that it would be unfair to admit the conversation, because Welsh had never expressly put to Mrs Deed the proposition that she, rather than he, had killed Mr Cook. He declaimed that such failure had, irremedially, denied her the opportunity of controverting such a proposition; and that, because of his own self-interest, he had deliberately not given her chance to reject the accuracy of what he was now asserting.
The short answer to such a proposition is that given by Mr Snopek. Had Welsh embarked upon the type of approach now espoused by Mr Algie, he may well, quite properly, have been accused of conducting an inappropriate interrogation of Mrs Deed. I know of no authority for the contention that, in a situation such as that now under review, there is an obligation to put specifically to the relevant suspect, that which such person is suspected of doing. As Mr Snopek pointed out, it is to be recalled that, in Swaffield, the witness Clancy, when he engaged in conversation with the suspect Pavic, was serving his own very clear self-interest. As Brennan CJ recited at par 6 p166, Clancy's express motive for assisting the police was that he wished to dispel what he perceived to be the police belief that he was implicated in the relevant murder, in some way. There was no suggestion by the majority of the High Court either that his conduct, or that of the police, was improper, or that he was bound to put propositions to Pavic of the nature now espoused by Mr Algie.
Finally, it must be noted that Mr Algie directed attention to the fact that the transcript of the discussion between Welsh and Mrs Deed contains a series of what, he says, are specific statements, quite unrelated to the subject matter of the charge against her, which tend to portray her as a person of bad character. These are, it was argued, so cumulatively prejudicial that they ought to lead to the exclusion of the whole of conversation.
I do not accept that argument. There is no doubt that some aspects of what was said do little credit to Mrs Deed; and may lead to a conclusion that she is not a person of particularly good character. However, Mr Algie seeks to elevate the import and significance of some of the content well above the level which it really warrants. As to the balance I have no doubt that, given a firm direction from me as to the proper use of this conversation, the jury would not use the impugned material in any impermissible manner.
In summary, there is no basis, consistent with principle, on which a discretion ought to be exercised to exclude the impugned evidence, having regard to the circumstances in which it was obtained. On the contrary, to exclude it in the circumstances, it would run counter to a considerable weight of authority. The prejudicial effect of its content is far outweighed by the highly probative features which corroborate her presence at and inferential involvement, in some fashion, in the events related to the death of Mr Cook.
For those reasons I am not prepared to accede to the Rule 9 application. There are, however, two points of qualification that I desire to make.
As indicated to counsel, I have had the opportunity of playing back what is said to be an enhanced audiotape of the conversation in issue. This was done utilising a fairly basic playback equipment. It immediately became apparent that the original audiotape is, at times, very difficult to understand, due to the presence of a considerable background noise. For that reason, I was unable to spell out of the playback some of the words recorded in what is said to be an accurate transcript of the content of the tape.
I confirm my verbal information to counsel that, unless the tape can be further enhanced, or played back on equipment of high fidelity, so as to render it possible to discern all the content alleged by the Crown, I would not permit the transcript to go to the jury in its present form. I am prepared to sit to re listen to the tape when Mr Snopek has made the technical arrangements referred to by him at the conclusion of the Rule 9 hearing.
Secondly, if Mr Algie wishes to make an application to exclude any specific content of the conversation, as being unduly prejudicial to his client, I would be prepared to further consider what he wishes to say on that topic, as his earlier submissions were essentially directed towards a global exclusion of the whole conversation. I do, however, take his point that it is important not to so emasculate the flow of conversation, as to give an unreal presentation of how it actually developed.

[2002] SASC 151

15 May 2002