R v Domokos (No 3) - [2004] SADC 120

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOMOKOS & ORS (No 3)
Reasons for Rulings of His Honour Judge Robertson
16 June 2004
CRIMINAL LAW
VOIR DIRE - SEARCH WARRANTS
Application to exclude evidence of a recorded conversation between police officer and accused - no deemed arrest under Section 23B(2) of Crimes Act - no "de facto" arrest - public policy discretion.
Application to exclude from evidence items located in a search of premises - search warrant - no deemed arrest or "de facto" arrest - entitlement to be present at search - Section 3P of Crimes Act - Public Policy Discretion
Crimes Act 1914 (Cwth) ss23B(2), 23F, 23G, 23N and 3P, referred to.
R v Connelly (1982) 30 SASR 236; Gibson v Ellis (192) 59 SASR 420; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; Bunning v Cross (1977-78) 144 CLR 54; R v Lobban (2000) 77 SASR 34, applied.
R v Pirie (1999) 205 LSJS 133, distinguished.
R v Leecroft (1987) 46 SASR 250, considered.

R v DOMOKOS & ORS (No 3)
[2004] SADC 120
Judge Robertson
Criminal

Paragraph 7 of the Accused Virag’s Rule 9 Application seeks to exclude from evidence a tape recorded conversation between the Accused and Federal Agent Buckland on 8 November 2001 when the Federal Police executed a search warrant to search the accused’s premises at Darley Road Paradise.
The recorded conversation is quite lengthy and involves Federal Agents Schrapel and Morrison, however, the Crown had indicated that it only seeks to lead in evidence questions and answers 1 to 19 inclusive of the transcript of the tape recorded conversation.
Mr Aitken, Counsel for Mr Virag, submitted that during the time of the conversation that Mr Virag’s liberty was curtailed to the extent that he became an arrested person pursuant to the provisions of Section 23B(2) of the Crimes Act 1914 which I will refer to as the (“deemed arrest”) or pursuant to the common law principles of “de facto” arrest. Mr Aitken submitted that as an arrested person the Federal Police were required to give Mr Virag his rights pursuant to Sections 23F, 23G and 23N of the Crimes Act before holding the conversation with the accused and they failed to do so. Accordingly, Mr Aitken submitted that the entire record of conversation, including Questions and Answers 1-19 should be excluded.
In my opinion the Accused was never a person under arrest pursuant to the provisions of Section 23 B(2) of the Crimes Act 1914. This submission fails at the threshold. For the Section to be enlivened, the threshold must be crossed, namely that Mr Virag was a person who was in the company of an investigating official for the purpose of being questioned. If the Section is so enlivened, then the circumstances set out in the Section need to be considered to determine whether there was a deemed arrest of Mr Virag.
Mr Virag was never in the company of Federal Agent Buckland for the purpose of being questioned as that expression is understood in Section 23B. He was in her company for the purpose of the execution of a search warrant and for the purpose of her reading out the terms of the search warrant to Mr Virag. I accept Ms Buckland’s evidence that she never had an intention to conduct an interview with Mr Virag on that day. The content of the recorded conversation supports this evidence, in that it can be seen that the conversation focussed upon the reading of the Warrant and matters arising from the Warrant. The fact that some questions were asked of Mr Virag during the course of the reading of the search warrant and later whilst the search was being undertaken, does not change the position, that the Accused was not, in my opinion, in the presence of the Police for the purpose of being questioned. The questions arose incidentally from, in the first instance, as a result of questions asked by Mr Virag about the contents of the Search Warrant.
Even if I am wrong and the threshold has been reached, in a technical sense, then I am still not satisfied that there was a deemed arrest of Mr Virag as I have formed the view that none of the three criteria set out in sub-section (2) have been met. Placitum (a) does not apply. Mr Virag had already been arrested and charged prior to 8 November 2000 when the search warrant was executed.
I accept Ms Buckland’s evidence that all that she required of Mr Virag is that he remain in her presence for the purpose of her reading the contents of the Warrant to him. Subject to that, Ms Buckland said that the accused was free to leave. There was no reason why the Police would wish to detain Mr Virag at that time. As a result the terms of Placitum (b) are not met.
Finally, I am of the opinion that there were no reasonable grounds for Mr Virag to believe that he would not be allowed to leave if he wished to do so. Accordingly, the terms of placitum (c) have not been met.
I am also of the view that the accused was not under “de facto” arrest. Mr Aitken relied upon the comments of White J in R v Leecroft (1987) 46 SASR 250 at 253:
“If the individual’s freedom to leave or to act as he wishes is interfered with in any relevant way, he is in the de facto custody of the police and the s.79a rights apply”
It was Mr Aitken’s submission that by Federal Agent Buckland requiring the accused to remain in the lounge room of her premises whilst she read out the warrant to him that had the effect of Ms Buckland placing the accused under “de facto” arrest.
In considering the comment in Leecroft it is important not to overlook the words “in any relevant way”. De facto arrest is where a person is deprived of his or liberty in the sense that it can be concluded that the person is apprehended or arrested although no formal words have been uttered (R v Connelly (1982) 30 SASR 226 at 239-240). Restrictions of liberty is not in every case a “de facto arrest”. The decision in Gibson v Ellis (1992) 59 SASR 420 demonstrates this. In that decision, King CJ (at 424) said:
“The statutory powers to search to which I have referred are plainly intended to operate independently of the apprehension of the suspect and in circumstances in which the suspect has not been apprehended. If the suspect is lawfully arrested, there is a common law power to search as an incident of the arrest and the statutory powers are not required. Obviously a power to search implies a power to impose such restrictions on the liberty of movement of the suspect as are necessary to effect the search. That limitation exists for a specific purpose and is not an apprehension. If the restriction imposed on the freedom of movement of the suspect is no greater than is reasonably necessary to effect the search, that restriction does not amount, in my opinion, to an apprehension for the purpose of s 79a of the Summary Offences Act. In my opinion the present appellant had not been apprehended at the time of the search and had not been apprehended at the time of the conversation which followed the search at the roadside.”
In my opinion on any view of the facts, it cannot be said that the accused was placed under “de facto” arrest during the search of his premises. As I said earlier all Federal Agent Buckland required of Mr Virag was that he remained in her presence whilst she read to him the contents of the search warrant.
If there was any arrest it happened after that time. As a result, there is no “causal link” between the impugned evidence and the failure of the Police to give the accused his “rights”. In other words the evidence was not obtained by illegal, improper or unfair conduct by the Police. (Question of Law Reserved (No. 1 of 1998) (1998) 70 SASR 281 at 287) and accordingly the Public Policy discretion has not been enlivened.
If I am wrong and the accused was either under deemed arrest pursuant to Section 23B(2) or de facto arrest under the common law then although the Public Policy discretion has been enlivened by the illegal conduct of the Police in failing to give Mr Virag his rights, I would not exclude the evidence in the exercise of that discretion.
Any conclusion that the accused was under arrest during the period in the lounge room would be a technical one. Ms Buckland did not believe she had placed the Accused under arrest. It is understandable that the Police would not have viewed their actions as depriving the accused of his liberty, in the sense that he was under arrest. As a result the degree of culpability of the Police in failing to give the Accused his rights is at the low end of the scale.
Furthermore, the questions and answers in 1-19 did not contain any controversial features, indeed, they focus on the identity of Mr Virag, the presence of any of the persons in the house and the fact that the Police are executing a search warrant.
In considering the exercise of the Public Policy discretion it is necessary to weigh against each other the two competing requirements of public policy identified in Bunning v Cross (1977-78) 144 CLR 54 at page 74. The High Court (at 78-80) referred to a number of factors which are relevant to the exercise of weighing up of the competing public policy interests. One of those factors is whether the conduct involved a defiance of the will of the legislature or a calculated disregard of the common law. It cannot be said that the conduct of Ms Buckland involved a deliberate disregard of the law. Another factor the High Court identified is the nature of the offence charged. It cannot be doubted that the nature of the offence charged is a serious one.
After undertaking the balancing exercise I have formed the opinion that the evidence should not be excluded.
Finally, I would not exclude the evidence under the general unfairness discretion. The admission of the evidence would not prevent the Accused from obtaining a fair trial. (R v Lobban (2000) 77 SASR 34).
Accordingly, the application to exclude the evidence is refused.
I now turn to the application of the exclusion of evidence contained in Paragraph 8 of the Accused’s Rule 9 Notice. This application seeks the exclusion of various items of evidence seized by the Police during the search of Mr Virag’s premises at 38 Darley Road, Paradise.
The application is based upon two grounds. The first is similar to that used to support the application in paragraph 7, namely, that at the time of the search the accused was under arrest and that the Police had failed to give the accused his “rights”. The second ground is that the Police conduct denied the accused his right provided by Section 3P of the Crimes Act. That Section entitles an occupier of the premises to observe the search of the premises being conducted. Mr Aitken, Counsel for the Accused, submitted that by requiring the Accused to listen to the reading of the Warrant, Federal Agent Buckland had prevented the accused from exercising his right to observe the search which was being undertaken by other officers at that time.
With respect to the first ground relied upon I adopt the same reasoning and conclusions regarding the issue of arrest as I have reached with respect to paragraph 7. I am of the opinion that there was no deemed arrest under Section 23B of the Crimes Act nor was there a de facto arrest under the Common Law.
In my opinion, even if it is accepted that the Police had arrested the accused there is once again no “causal link” between the obtaining of the impugned evidence and any illegality or impropriety on the part of the Police. The evidence was obtained through the lawful execution of a valid search warrant. For the discretion to be enlivened the evidence must have been obtained by unlawful, improper or unfair conduct. (Question of Law Reserved (No. 1 of 1998) (supra) at 287).
Mr Aitken relied upon the decision of Bishop DCJ in R v Pirie 1999 SADC 147. That decision is readily distinguishable. In that case the impugned evidence was located as a result of police questioning which the Court held was undertaken whilst the accused was under “de facto” arrest and who had not been given his rights. In other words the evidence was located as a result of the illegal or improper conduct of the Police. There was, in the opinion of the Judge, a causal link. In this case I am not satisfied that there has been any deemed arrest or de facto arrest. However, even if there had been, none of the evidence here was located as a result of unlawful police questioning.
If I am wrong in these conclusions then I would not exclude the evidence as a result of the exercise of the Public Policy discretion. I have referred earlier in these reasons to the exercise of weighing against each other the two competing requirements of public policy and the factors relevant to the weighing up process (Bunning v Cross (supra) at 74 and 78‑80). It is a result of that exercise that I have concluded that the evidence should not be excluded.
Furthermore, I would not exclude the evidence in the exercise of the general unfairness discretion. (R v Lobban (2000) 77 SASR 24).
I now turn to consider the second ground.
For the purpose of these Reasons I do not propose to consider the extent of the entitlement which Section 3P provides. Mr McEwen had submitted that because of the presence of sub‑section (3) that the right granted to an accused does not extend to the occupier being entitled to be present at every place a search is conducted in a premises. It is submitted that the Police are entitled to search different parts of a premises simultaneously.
However, as I said, I do not stay to give consideration to the construction of the Section. I accept that whilst the terms of Warrant were being read out by Ms Buckland the Accused was not in a position to exercise any entitlement under Section 3P. The search was being undertaken as Federal Agent Buckland was reading the Warrant. As I said earlier, Ms Buckland felt that it was important that Mr Virag understood the terms of the Warrant although she did not believe she was obligated to read out the entire terms to him.
Mr Aitken did not suggest that the conduct of the Police was illegal. I agree. At best it was either improper or unfair for the Police to undertake the search whilst the Warrant was being read to the accused. I have already stated that I do not consider the conduct improper. It may have been unfair in the sense that the Police should have not commenced to search the house until completion of the reading of the Warrant. By doing so he was prevented from exercising any right he had under the Section. If it was unfair it was not done with any “mala fides”. There is nothing to suggest it was done deliberately to prevent the Accused from exercising his rights. It seems to me that it was an oversight on the part of the Police that in reading the Warrant whilst the search was being undertaken the Accused was losing an opportunity to exercise his entitlement of observing the search.
Even if all that is accepted, it cannot be said that by denying Mr Virag the opportunity to exercise his entitlement that such conduct is “causally linked” to the discovery of the items of evidence. Whether the accused had been present or not in the room where the items were located the items would have been still located. In other words, any unfair conduct did not lead to the evidence being obtained. (Question of Law Reserved (No. 1 of 1998)) (supra) at 287. As a result the Public Policy discretion is not enlivened.
In any event even if I have erred in reaching that conclusion I would not exercise the discretion to exclude the evidence. In weighing up the competing public policy interests mentioned in Bunning v Cross (supra) (at 74), I consider that the evidence should not be excluded. Even if such conduct is considered improper I would not exclude it.
Finally, as I said earlier, I do not consider the evidence should be excluded in the exercise of the general unfairness discretion. (R v Lobban (supra)).
The application for the exclusion of the evidence seized by the Police during the search of 38 Darley Road, Paradise, is refused.