R v Flaherty No. Sccrm-02-246

R v FLAHERTY
[2002] SASC 287
Reasons for Ruling

Simon Peter Flaherty (“the accused”) was charged with one count of wounding with intent to do grievous bodily harm (s 21 of the Criminal Law Consolidation Act 1935 “CLCA”), one count of common assault (s 39 of the CLCA) and one count of assault occasioning actual bodily harm (s 40 of the CLCA). Each offence was alleged to have occurred at the Federal Hotel at Semaphore in the State of South Australia on 12 April 2001.
The Director of Public Prosecutions (“DPP”) alleged that the accused struck a Mr Andrew David Hughes on the right side of the face with a beer glass and that in doing so he was guilty of the offence of wounding with intent to do grievous bodily harm. The DPP alleged that a short time after this incident the accused punched a Mr Roderick Hamilton Spotswood in the face and in doing so was guilty of the offence of assault. The DPP alleged that a short time after the assault on Mr Spotswood the accused punched a Mr Derek Charles Meadows in the face causing injuries to his mouth and that in doing so he was guilty of the offence of assault occasioning actual bodily harm.
The charges were listed for hearing before a judge and jury in the Supreme Court commencing on 15 July 2002.
On 12 July 2002 the accused issued an application under Rule 9 of the Supreme Court Criminal Rules 1992 seeking a ruling that evidence of certain conversations between the accused and police officers involved in the investigation was inadmissible. No point was taken by the DPP about the fact that the application was issued outside the time period prescribed by the rules. (See rule 9.03).
On 16 July 2002 I delivered a ruling in relation to the accused’s application and indicated that I would deliver my reasons later.
During the course of the trial the accused objected to certain evidence which the DPP sought to lead in relation to the identification of the accused. Again, I heard argument, gave a ruling and indicated that I would deliver my reasons later.
My reasons in relation to each ruling appear below.
The Admissibility of the Conversations Between the Accused and the Police Officers Involved in the Investigation
There are five relevant conversations. All took place on 30 April 2001.
The first conversation involved Senior Constable Hannam, Constable Cooper and the accused. It took place near the Duke of Cumberland Hotel Glanville in the State of South Australia. The accused was arrested shortly after the conversation. Counsel for the DPP told me that Senior Constable Hannam was ill, and that he would not be called as a witness.
The first conversation was recorded in the statement of Constable Cooper dated 15 June 2001 as follows:
“Hannam then had a conversation with Flaherty in my presence. I was present and heard Flaherty reply to Hannam, ‘yeah that’s me I was involved’. Hannam then had a further conversation and placed Flaherty under arrest for wounding with intent.”
Constable Cooper did not make any notes of this conversation at the time. The first time he recorded the conversation in writing was when he prepared his statement dated 15 June 2001.
It is clear reading Senior Constable Hannam’s statement dated 25 July 2001 that he and the accused were the principal participants in the conversation and that he has a better recollection of the conversation than Constable Cooper. Constable Cooper was there, but he did not actively participate in the conversation. Senior Constable Hannam made notes of the conversation. His notes record that rather than what Constable Cooper recalls, the accused said,
“Yeah, I was wondering what was going to happen, I thought you’d be looking for me.”
The second conversation took place in the rear of a police vehicle as the accused was being taken to the Port Adelaide Police Station. By that stage he had been arrested. Constable Cooper made notes of the conversation. In essence, the conversation involved Constable Cooper advising the accused of the rights he had upon arrest (see s 79A Summary Offences Act 1953 “SOA”).
The third conversation took place at the Port Adelaide Police Station when, prior to the interview recorded on video, the accused said to Constable Cooper:
“I don’t want anyone with me as I’m not going to answer any questions in the video interview.”
The fourth conversation was recorded by Constable Cooper in his notebook. It occurred immediately after the third conversation. It centred upon the accused’s rights and the fact that he did not wish to say anything during the interview which was to be recorded on video.
The fifth conversation was the formal interview recorded on video in the Port Adelaide Police Station on 30 April 2001. The persons present at the formal interview were Senior Constable Hannam, Constable Cooper and the accused. Early in the interview the accused indicated that he did not wish to answer any questions. Despite that, the interview continued for a time and contains the following passage of questions and answers:
“QOn the err, report in front of me. Ok so it was actually Easter Thursday.
A Yep
QOk. Erm, and do you er, do you agree that err, I said the matter was in relation to err, err, a person being err, stabbed in the face with a broken glass?
AAhh, no, I schoonered in the face with a broken glass. I stabbed no-one in the face.
QWell what I mean, you’ve, you’ve its, I said it was in relation to someone being struck in the face with a glass
AYeah, yeah, ….. not stabbed though
QGlass. Ok. But you, do you, do you agree that’s what I said?
AYes,
QTo you at the time
AYes, yes
QAnd erm, do you agree that I then asked you if you were involved in this matter?
AYes
QAnd er, that you confirmed er, by saying that yes, you were the person concerned.
AYes”
In his application under Rule 9, the accused sought a ruling that the evidence of the five conversations be excluded. He relied on two grounds. First, he argued that there had been non-compliance with s 74D of the SOA, and that each interview was inadmissible by reason of the provisions of s 74E of that Act. Secondly, he argued that the fifth conversation should be excluded because the interview should not have continued after the accused had indicated that he did not wish to answer any questions. In this regard the accused relies primarily on the principle that evidence unfairly obtained should be excluded.[1]
[1] R v Stafford (1976) 13 SASR 392; R v Wilson (1987) 47 SASR 287.
The Recording of Interviews (ss 74C – 74G SOA)
Sections 74C – 74G of the SOA deal with the duty of an investigating officer to record an interview with a person suspected of having committed an indictable offence. Relevantly, the sections provide as follows:
74C. In this Division (sections 74C to 74G)-
" interview " includes-
(a) a conversation; or
(b) part of a conversation; or
(c) a series of conversations;
" investigating officer " means-
(a) a member of the police force; or
(b) a person authorised under an Act to investigate offences and arrest suspected offenders
74D. (1) An investigating officer who suspects, or has reasonable grounds to suspect, a person (" the suspect ") of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:
(a) if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;
(b) if it is not reasonably practicable to record the interview on videotape but it is reasonably practicable to record the interview on audiotape, an audiotape recording of the interview must be made;
(c) if it is neither reasonably practicable to record the interview on videotape nor reasonably practicable to record the interview on audiotape-
(i)    a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and
(ii) as soon as practicable after the interview, the record must be read aloud to the suspect and the reading must be recorded on videotape; and
(iii) when the videotape recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and
(iv) if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and
(v)    at the end of the reading, but while the videotape recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and
(vi) if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the error or omission asserted by the suspect in an addendum to the record of interview.
(2) If the suspicion, or a reasonable ground for suspicion, arises during the course of an interview, the investigating officer's obligations under subsection (1) arise at that point and apply to the interview from that point.
(3) In deciding whether it is reasonably practicable to make a videotape or audiotape recording of an interview, the following matters must be considered:
(a)    the availability of recording equipment within the period for which it would be lawful to detain the person being interviewed;
(b)     mechanical failure of recording equipment;
(c)    a refusal of the interviewee to allow the interview to be recorded on videotape or audiotape;
(d)    any other relevant matter.
(4) As soon as practicable after a videotape or an audiotape recording is made under this Division, the investigating officer must give the suspect a written statement of the suspect's right-
(a) if a videotape recording was made-
(i) to have the videotape played over to the suspect or the suspect's legal adviser (or both); and
(ii) to obtain an audiotape recording of the sound track of the videotape; or
(b)    if an audiotape recording (but no videotape recording) of the interview was made-to obtain a copy of the audiotape.
(5) Arrangements must be made, at the request of a suspect, for the playing of a videotape at a reasonable time and place to be nominated by an appropriate investigating officer.
(6) A suspect must be provided, on request and on payment of the fee fixed by regulation, with-
(a)    an audiotape of the soundtrack of a videotape recording of an interview with the suspect under this Division; or
(b)    a copy of an audiotape recording of an interview with the suspect under this Division.
74E. (1) In proceedings for an indictable offence, evidence of an interview between an investigating officer and the defendant is inadmissible against the defendant unless-
(a)    the investigating officer complied with this Division; or
(b)    the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer's non-compliance.
(2)    If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1) (b) , the court must-
(a)    draw the jury's attention to the non-compliance by the investigating officer; and
(b)    give an appropriate warning in view of the non-compliance,
unless the court is of the opinion that the non-compliance was trivial.”
Constable Cooper gave evidence on the voir dire. He was an honest witness and I accept his evidence.
However, I am not satisfied on the evidence that was put before me that it was not reasonably practicable to record the first and second conversations on audiotape. Although the evidence established that there were a limited number of audiotape machines held at the Port Adelaide Police Station, it did not establish that one could not have been made available to Senior Constable Hannam and Constable Cooper on 30 April 2001. I am prepared to assume that once at the police station, and prior to the formal interview recorded on videotape, it was not reasonably practicable to record the third and fourth conversations by audiotape. A written record was not made of the third conversation, but a written record was made of the fourth conversation which in substance repeated the terms of the third conversation.
The substance of the second, third and fourth conversations was put to the accused during the formal interview which was recorded on videotape.
Section 74D places an obligation on an investigating officer in relation to an interview. “Interview” is defined to include a series of conversations. If a number of conversations form a series of conversations then it would seem that the requirements of s 74D must be complied with in relation to each and every conversation. Furthermore, it seems that if one of a series of conversations forming an interview does not meet the requirements of s 74D then the power in s 74E(1)(b) to admit the evidence (if the Court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer’s non-compliance) may only be exercised in relation to the whole of the interview, that is, all of the conversations forming the series of conversations. In other words, all of the conversations forming the series and therefore the interview must satisfy the requirements of s 74E(1)(b).[2]
[2] R v Day (2002) 219 LSJS 348 per Perry J at paras 22 and 35.
In R v Blayney and Blayney,[3] Doyle CJ said,
“The conversation and the interview are, in one sense, a series of conversations. One followed the other after quite a short interval, they involved the same people, they related to the same topic. But separate conversations should be regarded as constituting the one “series of conversations” only if there is some reason to do so. The matters identified by me are not, of themselves, such as to require a conclusion in every case that the conversation and the interview constitute “a series of conversations” for the purposes of s 74C. It is unlikely that Parliament intended to treat as one interview all conversations with a suspect simply because, in the sense identified, they can be said to be part of the one series.
Despite the matters identified by me, it is still necessary to consider whether those matters lead to the conclusion that the two conversations are part of the one series. I have no doubt that there will be circumstances in which it would be appropriate to regard successive conversations between an investigating officer and a suspect as separate interviews, and not as a single interview. It is impossible to identify in advance the circumstances in which that will be so, but that does not lessen my confidence that there will be such circumstances. Successive conversations are not necessarily part of the one series simply because they involve the same people and the same subject matter.
The conversation between the detective and Erik at Erik’s home involved nothing more than the identification of Erik as the person the subject of an allegation, a brief indication of the allegation and a request to Erik to submit to an interview. There are strong arguments to support a conclusion that this conversation was quite separate from the more formal interview that followed a little later. It suffices to say that there are substantial grounds for thinking that the conversation at Erik’s home should not be regarded for the purposes of s 74C and s 74D of the SOA as part of the interview which was conducted at the police station.”[4]
[3] [2002] SASC 192.
[4] Paras 38, 39 and 40.
In this case the investigating officer did not comply with the requirements of s 74D in relation to the first conversation. As I have said on the evidence put before me, I am not satisfied that it was not reasonably practicable to record the interview on audiotape. Even if I am wrong on this point, the section was not complied with because a written record of the interview was not made as soon as practicable after the conversation. Constable Cooper did not make a written record of the conversation until 15 June 2001. Furthermore, the written record of the conversation was not read aloud to the suspect and the reading recorded on videotape (s 74D(1)(c)(ii)). Nor were the other requirements of s 74D(1)(c)(iii) complied with.
Looking at the first conversation alone I do not think that its admission is justified in the interests of justice (s 74E(1)(b)). First, the matter recorded is only part of the conversation. It follows that I cannot exclude the possibility that what is recorded is misleading. Secondly, Senior Constable Hannam’s statement records the whole of the conversation and what is recorded by Constable Cooper is different from what is recorded by Senior Constable Hannam.
In relation to the second, third and fourth conversations, I do not think that they form part of a series of conversations which include the first and fifth conversations. It is true that it can be said of all five conversations that one followed the other after a short interval and that they involved the same people. However, the second, third and fourth conversations did not involve the same topic and can be distinguished from the events surrounding the arrest (first conversation) and the formal interview recorded on videotape (fifth conversation).
For the purposes of deciding the issues in this case, it matters not whether the investigating officers complied with the requirements of s 74D in relation to the second, third and fourth conversations or one or more of them because I am satisfied that it is in the interests of justice to admit the evidence of the conversations. No prejudice will be suffered by the accused in doing so. The conversations establish that the accused was advised of his rights and that he said he did not wish to answer any questions.
The fifth conversation was recorded on videotape. The accused objected to evidence of the conversation being admitted on two grounds.
First, it formed part of a series of conversations which also included the first conversation. The requirements of s 74D were not complied with in relation to the first conversation and it was not in the interests of justice that that earlier conversation be admitted in evidence. Accordingly, the fifth conversation could not be admitted. I do not think the first and fifth conversations were so linked that they formed part of a series of conversations. The first conversation arose out of the police officers identifying the matter they were investigating and the arrest of the accused. The fifth conversation was the formal interview at the police station.
Secondly, the accused submitted that when he indicated that he did not wish to answer any further questions the investigating officers should not have asked any further questions. Counsel for the accused referred me to R v Wilson[5] and in particular the comments by White J at 296,
“When Weetra expressed a desire to exercise one of his rights under s 79a, that is, his desire to see his solicitor before answering further questions, that request should have been respected. Some persons are able to assert their rights more readily and forcibly than others. Wilson, for example, did so. Weetra felt himself unable to hold out. It would have been better if the option of going on had not been left to Weetra, at least until it became evident that a solicitor was not available at all. The combined effect of the conduct of the detectives was to question Weetra without a magistrate’s authorisation and to deprive Weetra of his solicitor’s advice as contemplated by s 79a. Their conduct breached both the letter and the spirit of ss 78 and 79a. If the only breach had been a breach of s 78 I would have overlooked it for the reasons given above. But the breach of both sections persuade me, in combination, that I should exclude the evidence of answers at the interrogation. Notwithstanding the seriousness of the charge of rape, the proper desire of the detectives to clear the matter up and their honest belief that they did not need a magistrate’s authorisation, they knew that Weetra did not wish to answer questions without seeing his solicitor and they acted in ways which, in effect, denied him his rights. In the circumstances, I ruled that the evidence of the whole interview should be excluded from the trial.”
[5] (1987) 47 SASR 287.

There are important features of that case which are not present in this case. Weetra was a particularly vulnerable man. He was a shy and poorly educated part-Aboriginal living at Point Pearce. White J found that he was a very suggestible person.
There is a further difficulty. If the accused exercises his right to silence, should the investigating officer cease questioning in circumstances in which he is attempting to comply with the requirements of s 74D (1)(c) of the SOA? I note that in R v Nayda,[6] Judge Lunn said,
“It was further suggested that (1)(c) could not operate after Nayda had refused to answer questions, and thus that the police had not failed to comply with s74D in not pursuing the processes in (1)(c)(ii) and onwards. I do not agree. It would mean that a defendant who was alleged to have made an unrecorded admission which he later disputed would be in a worse position to refute that allegation at trial because he had lawfully refused to answer further questions than if he had not exercised his right to silence, the procedures under (1)(c) had been pursued and he had there disputed the admission attributed to him by the police. The negation of the right of the police to ask further questions after the right to silence has been exercised is pursuant to the Court’s discretion to exclude matters where there has been unfairness to the defendant, but this can always be overridden by statute, eg s38 of the Road Traffic Act 1961: Hooper v R (1995) 64 SASR 480. In my view s74D(1)(c) authorises the police to pursue the procedures in (ii) – (vi) even if the defendant has declined to answer questions. However, it produces a complex legal situation. It may be that in fairness to the accused he should be entitled to have further legal advice on his rights under (1)(c)(iv) and (v) before that procedure occurs. However, these issues can be left to be addressed in cases where they arise.”[7]
[6] (1999) 203 LSJS 465.
[7] At 474.
The question discussed by Judge Lunn was not fully argued before me. It is a difficult point and I would not express an opinion without proper argument.
In considering whether it would be unfair to admit the evidence of the fifth conversation I am entitled to have regard to all relevant matters. I think the conversation should be excluded. The accused indicated that he did not want to answer any further questions. What was put to him thereafter was Senior Constable Hannam’s version of the first conversation rather than that of Constable Cooper. As previously mentioned, counsel for the DPP indicated Senior Constable Hannam is not to be called as a witness.
The Identification Evidence
The principal witness for the prosecution was Mr Nikola Marjanovic who was the bar manager at the Federal Hotel on the night in question. He witnessed the first attack on Mr Hughes and the subsequent attacks on Mr Spotswood and Mr Meadows respectively. He was involved in ejecting from the hotel the man who hit Messrs Hughes, Spotswood and Meadows. In fact, that man and Mr Marjanovic exchanged blows. Mr Marjanovic described the man as a blond or fair headed man. He described the man’s companion as a dark haired man. Messrs Spotswood and Meadows could not identify their attacker. Mr Hughes could identify the person who attacked him, but he did not see the assaults on Messrs Spotswood and Meadows.
On 13 September 2001, some five months after the incidents, Mr Marjanovic looked at a number of photographs. He identified the man who struck Messrs Hughes, Spotswood and Meadows on 12 April 2001. It was agreed that the photograph which he identified was a photograph of the accused. It may be noted at this point that the accused had refused to participate in an identification parade.
During his evidence in chief, Mr Marjanovic gave evidence about an occasion a few weeks before 13 September 2001 when he saw a person at the hotel he thought to be the accused. He said,
“AI didn’t actually recognise him properly, I didn’t actually know who he was, I spoke to someone and then they told me.”
This prompted an application by the accused to object to any identification evidence from Mr Marjanovic. I was told by counsel for the accused that a decision had previously been made by those representing the accused that the accused would not object to identification evidence from Mr Marjanovic. Counsel suggested that, by the above answer, Mr Marjanovic implied that someone else had identified the accused to Mr Marjanovic a few weeks before 13 September and that on 13 September 2001 Mr Marjanovic identified the person he saw in the hotel a few weeks before, rather than the man he saw on 12 April 2001. Counsel argued that this made identification evidence from Mr Marjanovic of so little evidentiary weight that I should exclude it.
Counsel for the DPP told me that he had understood that identification was in not dispute. He said that he wished to call Mr Marjanovic on the voir dire. He told me that he also wished to re-call Mr Hughes so that Mr Hughes might give further evidence about his sighting of the accused at the Duke of Cumberland Hotel a couple of weeks after the incident and to identify the accused in Court as the person who struck him on 12 April 2001.
Mr Hughes had already given evidence without objection about his sighting of the accused on 30 April 2001 and I think that by the end of the argument counsel for the accused was prepared to accept that his main objection in relation to any further evidence from Mr Hughes was Mr Hughes’ proposed in-Court identification of the accused.
I heard evidence on the voir dire from both Mr Marjanovic and Mr Hughes.
Counsel objected to Mr Hughes giving evidence identifying the accused, but he did not otherwise object to him being re-called.
In the course of submissions, counsel for the accused acknowledged that there was other evidence which established that the accused was in the Federal Hotel on the night in question. He said the following in relation to evidence the DPP proposed to lead from Mr Benjamin Levi,
“… I accept that that evidence would certainly, from the point of view of case to answer at the very least, more than satisfy the Crown’s onus to establish that the accused was there in the absence of anything said by Hannam, anything said by Hughes, anything said by Marjanovic.” (T.209)
On the fourth day of trial, I ruled as follows:
“In my opinion, Marjanovic should be permitted to give evidence of his identification of the accused. I also think that Hughes may be recalled by the prosecution for the purpose of giving further evidence of his recognition of the accused a few weeks after the event and of the fact that he is able to identify the accused today. I so rule.
I will publish my reasons later. I note that appropriate directions will need to be given to the jury about such evidence.”
I was referred to a number of authorities.[8]
[8] R v Britten (1989) 51 SASR 567; R v Hallan and Karger (1985) 42 SASR 126; R v Deering (1986) 43 SASR 252; R v Easom (1981) 28 SASR 134.
In R v Britten, King CJ said,
“Mr Lyons, who appeared for the defence at the trial and also before us, asked the learned trial Judge to exclude, in the exercise of his discretion, the evidence of identification on the ground that identification by means of photographic slides was improper and unsafe in the circumstances and that there ought to have been an identification parade. The learned Judge declined to exclude the evidence and that ruling is the subject of one of the grounds of appeal. Evidence of out of court identification by means of photographs is legally admissible: Alexander v The Queen (1980) 145 CLR 395. Such evidence may be excluded in the exercise of the trial Judge’s discretion if in the circumstances its probative value is outweighed by its prejudicial effect (R v Christie [1914] AC 545), its submission would be unfair to the accused (R v Lee (1950) 82 CLR 133) or on grounds of public policy arising out of police impropriety in relation to the identification: Bunning v Cross (1978) 141 CLR 54 ….
I might add at this point that it appears that counsel for the prosecution did not ask Mrs Sauer to identify the appellant in court. I think that it is apparent from the course of her evidence that she implicitly identified the man in the dock as the man of whom she was speaking but it is unfortunate that she was not asked to say so explicitly. It is not to be thought that because courts have stated that dock identification is of little value where the accused is not previously known to the witness, the witness should therefore not be asked whether he can see the person concerned in court. This should be done in every case depending upon identification notwithstanding that the evidence principally relied upon by the prosecution is the out of court identification.”[9]
[9] At 569 and 572.
von Doussa J said,
“As Mrs Sauer claimed a degree of familiarity with the features and characteristics of the station wagon driver, I do not consider the procedure adopted by Detective Atkins, or the composition of the selection of slides, rendered the identification made by Mrs Sauer unsatisfactory and of so little evidentiary weight that the learned judge should have excluded it. In the course of a searching cross-examination of Mrs Sauer before the jury, a number of matters emerged which now give cause for concern about the reliability of her identification, but on the evidence taken on the voir dire hearing, the view was open that she had had sufficient opportunity to observe the driver of the station wagon in a manner and for a sufficient time for her later photo identification to be entitled to weight if the jury was minded to accept it. On the state of the evidence as it was known to the learned judge when he ruled upon admissibility, I do not consider that the appellant has established that he erred in the exercise of his discretion.”[10]
[10] At 578.
There is no evidence of police impropriety in this case. I do not think that in the circumstances the probative value of the identification evidence is outweighed by its prejudicial effect. Nor would its admission be unfair to the accused. There are matters identified by counsel for the accused which may affect the weight to be placed on the identification evidence. However, that is a matter for the jury. In my opinion, the identification evidence of Mr Marjanovic and Mr Hughes is admissible. Depending on how the case develops, it will be necessary for me to give directions to the jury as to the use which may be made of the evidence.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN REASONS
1.R v Stafford (1976) 13 SASR 392; R v Wilson (1987) 47 SASR 287
2.R v Day (2002) 219 LSJS 348 per Perry J at paras 22 and 35
3.[2002] SASC 192
4.Paras 38, 39 and 40
5.(1987) 47 SASR 287
6.(1999) 203 LSJS 465
7.At 474
8.R v Britten (1989) 51 SASR 567; R v Hallan and Karger (1985) 42 SASR 126; R v Deering (1986) 43 SASR 252; R v Easom (1981) 28 SASR 134
9.At 569 and 572
10.At 578

[2002] SASC 287

21 August 2002