R v Dorey & Falkiner - [2004] SADC 155

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOREY & FALKINER
Ruling of Her Honour Judge Kelly
4 November 2004
CRIMINAL LAW
Voir Dire application to exclude records of interview - Application refused.
Summary Offences Act S79A(1) ; Summary Offences Act S74D, referred to.
R v Lavery (1979) 20 SASR 430, applied.

R v DOREY & FALKINER
[2004] SADC 155

The trial of the accused Craig Andrew Dorey and Brett Lee Falkiner on charges of Aggravated Serious Criminal Trespass in a Place of Residence & Larceny commenced on 25 August 2004.
Before the empanelment of the jury, counsel for Mr Dorey made an application pursuant to Rule 9 of the District Court Rules that the whole of the interview between his client and the two investigating police officers on 31 March 2003 be excluded in the exercise of the Court’s discretion.
Counsel for Mr Falkiner also applied to exclude certain comments made by his client after the conclusion of a formal interview on the 28 March 2003. Later after the voir dire hearing in relation to Mr Dorey’s application had commenced counsel for Mr Falkiner made an application pursuant to Rule 9 in relation to his client’s formal record of interview on a similar basis to the application which had been made by the accused Dorey.
After hearing evidence from the two police officers concerned, Constables Ahearn and Finnie, each of the accused Mr Dorey and Mr Falkiner and one witness called by Mr Dorey, Paul Coles, and after viewing the video tape in respect of Mr Falkiner’s interview and listening to the audio tape of Mr Dorey’s interview I ruled that subject to the excision of certain comments and answers (which were agreed by each of the parties) that the prosecution would be permitted to lead evidence of those interviews at the trial. At the time of delivering my ruling I indicated to counsel that I would give my reasons at the end of the trial. I do so now.
I deal first with the application pursuant to Rule 9 by Mr Dorey to exclude any evidence of the conversation between himself and Constables Ahearn and Finnie on 31 March 2003. Mr Schapel, counsel for Mr Dorey, made the application on the basis that the police officers should have arrested the accused prior to the commencement of that interview and given him his rights pursuant to s 79A(1) of the Summary Offences Act. Additionally it was contended that a question in the interview at page 4 of the transcript (VD P1) when the accused Dorey queried whether he should have a lawyer at that stage rendered it unfair to admit any of the questions and answers after that point in the interview. In addition, it was contended that the accused was intoxicated at the time when he agreed to accompany the police back to the Port Adelaide Police Station on that date for the purpose of speaking with the police and in all the circumstances it would be unfair to admit that interview.
As the voir dire hearing proceeded it became obvious that the police officers involved in this investigation had misplaced the video copy of the interview and all that was available by electronic means was an audio cassette tape of the interview (VD P1). Mr Schapel later amended the Rule 9 application to include an application that by reason of the non compliance of the prosecution with regard to s 74D, namely the failure to produce the video interview, the whole of the interview ought to be excluded in the exercise of the Court’s discretion.
Two very junior police officers were involved in the questioning of Mr Dorey, Constable Melanie Ahearn and Constable Paul Finnie from the Port Adelaide Police Station. Constables Finnie and Ahearn went to the home of the accused on a number of occasions prior to 31 March 2003 and left a calling card under his door.
It was common ground that prior to speaking with the accused Dorey on 31 March 2003 the police officers were in possession of information from both the victim Mr Powell and the co-offender Falkiner that the accused Dorey was present in the unit at the time of the commission of the offence. He was, in the relevant sense, a suspect on 31 March 2003.
In evidence before me the accused Mr Dorey whilst conceding that he had voluntarily accompanied the police back to the Port Adelaide Police Station, stated that he did so only because he thought that if he had refused he would be arrested and that he was intoxicated at the time and his ability to make an informed decision was thereby affected.
After hearing the evidence and in particular after hearing the audio tape of the interview with Mr Dorey I formed the view that there was nothing in that conversation so far as could be gleaned by listening to it to indicate that the accused was not able to comprehend the purpose of the police enquiries and the questions which were asked of him. There was no obvious evidence of intoxication such as slurring of speech, confusion in answering questions or an inability to understand questions.
He was cautioned in clear and unequivocal terms at the outset of the interview and I note that he was able to satisfactorily clarify his understanding of that warning to police before they proceeded with the interview.
It is true that at an early stage in the interview (page 4, line 27 of VD P1) the accused in answer to the question whether he understood that anything he said was going to be recorded, answered “should I have a lawyer or something, I mean I have done nothing wrong. I don’t even know what you’ve got me here for”
In response to that question Constable Ahearn then told the accused what the allegation was and where the offence was alleged to have occurred and asked him again whether he wished to answer any further questions in relation to these matters. After he confirmed that it didn’t really matter because he’d done nothing wrong and as far as he was concerned they could go for it, (as he put it), the interview continued.
After hearing the whole of the conversation on the audio tape. I formed the view that the apparent question at that stage in the record of interview did not amount to a genuine request to see a lawyer and was a comment made by the accused more in the nature of a rhetorical question in the context of protesting his innocence. At all times the accused knew that he was entitled to a lawyer if he wanted one, and acknowledged as much in evidence before me.
There is no evidence that either of the police officers investigating the matter acted unlawfully or improperly in approaching the accused Mr Dorey on 31 March 2003 and asking him to accompany them back to the police station. The very nature of the conversation which took place at the house reveals in its terms in my view that the accused understood that he had a free choice whether or not to accompany the police at that time to the police station and that it was his choice whether or not he spoke with the police further about the matter under investigation.
Although both the police officers conceded quite candidly that they had reasonable grounds to suspect that Mr Dorey was involved in the offence and that if he had refused to accompany them to the police station they would have in all probability arrested him at that stage, there is nothing unlawful or inappropriate about police officers questioning a suspect provided that the suspect is cautioned. I find that the caution was given in clear and unequivocal terms and repeated and that he was told on more than one occasion that he was not obliged to answer questions.
Is there some circumstance either in the accused’s state of intoxication that day or in the conduct of the police which would make it unfair to admit the evidence of the interview against the accused Mr Dorey?
The evidence from both the accused and his friend Mr Coles pointed to the accused being a heavy drinker and to having consumed a quantity of alcohol on the night before the police came around to his house and indeed on the morning that the police came.
I do not find it necessary to make any finding as to precisely how much the accused had to drink, in the light of my finding that whatever he had had to drink, his demeanour and conversation in the recorded interview and from the evidence of the police officers demonstrates quite clearly he was able to comprehend what was going on. He was able to give responsive answers to questions and I find that his decision to accompany the officers to the Port Adelaide Police Station and speak with them was a decision freely made by him.
The overwhelming inference from the evidence is that the accused was alert and responsive to questions and anxious to put his side of the story in the hope that perhaps he might avoid being arrested.
I am satisfied that the accused Dorey was not under de facto arrest at the time he agreed to accompany the police back to the Port Adelaide Police Station.
No authority was cited for the proposition that it is improper for police officers to question a suspect before arresting them in circumstances where a suspect has voluntarily agreed to speak with them
The remarks of the former Chief Justice in R v Lavery 1979 20 SASR 430 at page 441 are apposite.
“…..A suspect may, voluntarily and without constraint, accede to a police officer’s request to accompany him and, if he does so, there is of course no interference with his liberty. This is so even if he goes reluctantly out of respect for authority or fear that a refusal will be construed as an indication of guilt or some other similar motive. The suspect’s liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey, notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint and he cannot be regarded as accompanying the police officer voluntarily. If such a situation comes into existence, and the police officer does not wish to make an arrest, it is incumbent upon him to make it car by words or actions that the suspect is free to refuse the invitation and is free to depart…..”
I accept the evidence of the police officers Ahearn and Finnie that he was expressly told at the house that he was not under arrest and again when they arrived back at the Police Station. Neither Constable Ahearn nor Constable Finnie noted any of the indicia associated with alcohol intoxication and on the basis of their observations assumed he was competent and able to understand questions and answers. Their evidence is corroborated by the audio tape of the conversation.
There was some issue made about the fact that Constable Ahearn’s notes were made in two parts. Whilst she was a very junior officer, indeed she was only a probationary constable at that time nevertheless, her notes and actions on that day are very thorough. I accept Constable Ahearn as a witness of truth and her explanation for completing expanded and somewhat fuller notes some hours after the events that day.
It follows that I find that the decision which Mr Dorey made to speak with police on that day was of his own free will and made in the knowledge that he had a choice whether to speak or remain silent.
It remains to consider the application to exclude the record of interview on the basis that the prosecution were unable to present a copy of the video to be played to the defence contrary to s 74D of the Summary Offences Act. Specifically Mr Schapel relied on s 74D (5) which obliges the police to make arrangements for the playing of the video tape upon a request pursuant to sub-section 4 by an accused person. It would appear that on being warned for trial the two police officers went to the property section of the police station where the video had been booked in and endeavoured to retrieve it. Apparently after a search of the property room it couldn’t be found. Whilst the video was booked into the property section and receipted as being received it appears to have gone missing.
Whilst the accused at no stage prior to the date for trial ever made a request in terms of s 74D (4) for the purpose of the argument, I accept that the request had by the time of the argument been made. It was relied on by counsel for the accused after it became apparent that the video had gone missing.
Assuming that the prosecution then is not able to fulfil the requirements of sub-section 5 that is, they are not able to arrange for the video to be played and were only able to produce the audio cassette, then it follows from the terms of s 74D that the interview is inadmissible unless it can be shown that it is in the interest of justice to admit it.
In considering this issue a number of matters were relevant:-
·Firstly that there was available an audio cassette of the conversation. That audio tape was clear and I was able to reach a concluded view that the question of the accused querying whether he needed a lawyer was in truth a rhetorical question by listening to that audio tape.
·The evidence of Constables Finnie and Ahearn was that the video tape was booked into property at the Port Adelaide Police Station by Constable Ahearn and the records of the Port Adelaide Police Station appear to show that that is where it has remained apart from its removal on one occasion for transcription purposes.
·The inability of the prosecution to produce the video appears to be solely as a result of an administrative problem within the exhibits property section of the Police Station and not due to any improper conduct or malpractice on the part of the police officers concerned with the investigation of this matter.
·The two police officers charged with the investigation into this matter were very inexperienced junior police officers. Constable Ahearn was at the time a probationary constable and both are attached to the Patrol Section of the Port Adelaide Police Station.
·Notwithstanding the fact that they are junior and inexperienced officers I find that at least with respect to Constable Ahearn that her recording of events on the relevant day and her attention to note taking was conscientious and thorough. No criticism can be made of Constable Ahearn for the fact that the video tape has gone missing.
In the circumstances I concluded that it was in the interests of justice to admit the audio cassette tape of interview and I ruled accordingly.
Accused Falkiner
By a late application after the voir dire hearing in relation to the admissibility of the interview with the accused Dorey had commenced. the accused Falkiner applied to have the record of interview of himself with Constable Finnie on 28 March 2003 excluded from evidence.
The basis of that application was that in the exercise of the Court’s discretion the interview should be excluded because by reason of the accused’s young age and the circumstances in which the police spoke with him that day he was in effect under de facto arrest and, notwithstanding that on the face of it he agreed to speak with the police, in reality it could not be said that he spoke to the police of his own free will.
It was argued, as in the case of Mr Dorey that because the police suspected the accused at the time when they originally spoke to him they should have arrested him there and then and given him his rights pursuant to s 79A of the Summary Offences Act.
On 28 March 2003 Constable Paul Finnie and a probationary constable Schubert went to the accused Falkiner’s home about this matter. The accused was asked if he would accompany the police to the Port Adelaide Police Station, and was told he was not under arrest.
In evidence before me the accused conceded that he had been told he was not under arrest and that he did not have to answer questions. He also conceded that he knew that he had a choice whether to speak or remain silent and chose to tell the police his side of events because as he put it, he had nothing to hide, so he agreed to answer their questions.
Once again with regard to the accused Falkiner the fact that he was of the view that if he had not agreed to go to the police station the police would have arrested him anyway is not decisive of the question whether he was under de facto arrest. The plain fact is he did agree to accompany the police to the Police Station and he did so. When he got to the Police Station he thereafter gave his version of events in the exercise of a free choice whether to speak or remain silent. Mr Falkiner agreed that he knew from his previous dealings with police what his rights were, including that he had a right to a solicitor.
Mr Falkiner also candidly conceded in evidence that even if he had been arrested he would probably have still answered questions because he had nothing to hide.
The remarks of the Court in R v Lavery already referred to earlier in these reasons are equally applicable to the circumstances of Mr Falkiner’s questioning on 28 March 2003.
I find that the accused was not under de facto arrest and that the answers to questions in the video record of interview were made in the exercise of a free choice whether to speak or remain silent.
I see no illegality or impropriety on the part of the police relevant to the exercise of the Court’s discretion, nor do I see that there is any other factor present either in the circumstances of the accused or the particular events of that day which could give rise to the exercise of the Court’s discretion to exclude that evidence.
Accordingly I ruled that the interview is admissible.