R v Fouyaxis - [2007] SADC 61

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FOUYAXIS
[2007] SADC 61
Ruling of His Honour Judge Chivell
24 May 2007
CRIMINAL LAW
Evidence - Confessions - Voluntariness - Judicial discretion to admit or exclude evidence
Road Traffic Act 1961 s160; Controlled Substances Act 1984 s52; Summary Offences Act 1953 s68, s79, referred to.
R v Chapman (2001) 79 SASR 342; Gibson v Ellis (1992) 59 SASR 420; R v Lobban (2000) 77 SASR 24; R v Hallam and Karger (1985) 42 SASR 126, applied.

R v FOUYAXIS
[2007] SADC 61

The accused has pleaded not guilty to aggravated serious criminal trespass in a place of residence, aggravated robbery, common assault, causing grievous bodily harm with intent to do grievous bodily harm, and theft.
Stated briefly, the allegations are that the accused, in the company with three other persons, all wearing balaclavas, and armed with a baseball bat and Samurai swords, forcibly entered the home of the two male victims and bound their hands with tape. During the home invasion, the female victim was assaulted, and one of the male victims was hit a number of times with a baseball bat, thereby sustaining very serious injuries.
It is alleged that various items were stolen from the two male victims.
These alleged offences occurred on 20 April 2004.
I will refer to these events as the “home invasion”, since the issue will be one of identification. The fact that a home invasion took place was not disputed by the defence, at least at this stage, but it is denied that the accused took part.
Outline of Crown Case
The Crown allege that on 30 April 2004, at about 2.16am, the accused was driving a Mercedes motor vehicle on Port Road at Thebarton when he was pulled over by Constable Marriott, who was then performing speed detection duties using laser equipment. Marriott said that the accused was driving at 86kph in a 60kph zone.
Marriott asked the accused for verification of his identity while he was filling out the traffic infringement notice. The accused gave him a false name and false date of birth. Marriott undertook further inquiries, including making various telephone calls and making inquiries over the police communication system.
At about 2.35am, Constables Hocking and Winterfield were driving past the location where the accused and Constable Marriott were conversing. Noting that they had passed that location 15 minutes earlier and the two men were there, they decided to stop and offer assistance.
Constable Winterfield then proceeded to examine the vehicle because he noted that the tread on the two rear tyres was low. He said that he carried out an inspection pursuant to his powers in s160 of the Road Traffic Act.
In the course of examining the interior of the vehicle through the driver’s side window with the aid of his torch, he noted other defects, for example, there was no accelerator pedal.
He then opened the driver’s side door, and noting that the seat belts were frayed, his attention went to the centre console where he saw one half of a tablet next to a small silver tin. He examined the tablet and noted a logo on it which suggested that it was not a legitimate pharmaceutical product. At around the same he found the tablet and the tin, he also found an Australian passport in the vehicle. He went over to Marriott and advised him of the find and also gave Marriott the passport.
When the passport was produced to the accused, it is common ground that the accused then admitted his true identity.
By this time, Constable Winterfield obviously suspected that the accused was in possession of illicit drugs, so he commenced to search the vehicle, and he said he was exercising his powers under s52 of the Controlled Substances Act.
After Marriott retrieved the tin and the small tablet from the vehicle, Constable Winterfield then noted the presence of a silver coloured metal briefcase behind the driver’s seat. He drew this to Marriott’s attention as well, the briefcase was drawn to the accused’s attention, it was opened and contained three sandwich bags containing cannabis.
The accused was then arrested for possessing controlled substances and giving a false name and address. He was conveyed to the City Watch House where he was charged and processed and eventually given police bail.
As part of normal procedure, Marriott requested the State Duty Officer to conduct a search of the accused’s home address on the basis that it was suspected that further illicit substances might be found there. He understood that this request would be passed on to the Port Adelaide CIB.
As a result of this information being received by the Port Adelaide CIB, they attended at the accused’s home address in the morning of 30 April 2004. A search was conducted using the powers contained in a general search warrant issued to CIB members in the presence of the accused’s father, Mr Peter Fouyaxis, while the accused was still in custody on the drug matters.
Detective Brevet Sergeant Anderson was in charge of the search. Coincidentally, he had been involved in the investigation of the home invasion on 20 April 2004, which resulted in the charges the accused now faces.
During the search, Anderson located two Samurai swords and a baseball bat and a number of items which were connected with the home invasion, including a newspaper article concerning the event. Anderson drew a connection between these items and the home invasion, so he seized them and sent them off for analysis.
Anderson telephoned Sergeant Teakle, the Watchhouse Sergeant, who seized the accused’s clothing and shoes before he was released on bail. These were also analysed.
Blood which matched the DNA profile of David Holton, the victim of the home invasion, was found on the baseball bat and the shoes.
The accused was arrested on 11 July 2004 when this information became available. Conversations at the time of the arrest and, later, a formal interview at the Port Adelaide Police Station, were recorded on video camera. The accused denied involvement in the home invasion, saying that he had purchased the items seized from a person whom he refused to name.
Destruction of Exhibits
It is common ground that most of the important exhibits have been destroyed by the police. In his statement, dated 17 November 2005, Senior Constable Manning says that, in his capacity as Audit and Inspection Officer for the Port Adelaide area, they were destroyed on 23 June 2005 as he (wrongly) believed that the charges against the accused had been finalised. Clearly, the destruction of this evidence was inadvertent, in the sense that it was based upon a mistaken belief that the exhibits were no longer required.
Defence Applications
The accused has made a number of broad‑ranging applications pursuant to Rules 8 and 9 of the District Court Criminal Rules which I summarise as follows:
1. a stay of proceedings based on the destruction of the exhibits;
2.exclusion of the evidence of Katrin Both, Andrew Donnelly and Nicol Sly in relation to DNA analysis, Michael Thomas in relation to shoe mark comparisons, also on the basis of the destruction of the exhibits;
3.exclusion of evidence obtained as a result of the search of the accused’s vehicle on 30 April 2004, and that obtained as a result of the search of the accused’s house later that morning, and that obtained as a result of forensic samples taken from the accused that morning, on the basis that the search of the accused’s car was unlawful, the evidence obtained as a result of that search was tainted, and this taint flowed through to the later evidence obtained;
4.exclusion of the evidence of conversations between the accused and the police on 11 July 2004 when he was arrested on these charges on the basis that it was tainted by the alleged illegality on 30 April 2004;
5.alternatively, exclusion of the evidence of the interview between the accused and the police on 11 July 2004 on the basis that his request to telephone his brother was refused in contravention of s79A of the Summary Offences Act;
6.in the further alternative, exclusion of the interview on the grounds that the accused’s participation in it was involuntary;
7.exclusion of secondary evidence of the destroyed exhibits such as photographs; and
8.exclusion of various other, less significant evidence on the grounds of relevance or in the exercise of the general discretion to exclude.
I decided to approach these applications in a different order to that set out in the Application. It seemed to me that it was preferable to determine the objections to the admission of the evidence first, and to determine the application for a stay after that. There are many issues common to both, but clearly the application for a stay would be otiose if the evidence is not admitted.
The Search of the Vehicle
There is a dispute on the evidence about the events on Port Road in the early hours of 30 April 2004.
Marriott said he pulled over the accused’s car because he detected him driving at 86kph in a 60kph zone. He said he showed him the reading on the laser equipment after the accused stepped out of the car.
When he gave evidence on oath, the accused denied that he was speeding and denied that Marriott showed him the reading. Marriott said that he noted that he had shown the reading to the accused on the Expiation Notice (T48). The accused did not say how fast he was going. I prefer Marriott’s evidence to that of the accused on this point. The accused told a number of lies to Marriott that night about his identity, and he is obviously a person who is prepared to lie when it suits his purposes.
Marriott was acting lawfully in requiring the accused to stop (see Road Traffic Act 1961, s42).
Marriott then proceeded to question the accused about his identity. Again, this was authorised by s42. Note that s42 authorised Marriott to ask questions “for the purpose of ascertaining the name and place of residence ..... of that driver .....”.
That section clearly empowered Marriott to continue questioning the accused to ascertain his identity because he was not satisfied with the truthfulness of the accused’s answers.
I disagree with Mr Lyons’s submission that his authority to continue questioning the accused expired upon his first answer, for reasons which I will outline shortly.
In short, the accused initially told Marriott that his name was Sotirios Fouyaxis (his brother’s name), and gave him his brother’s date of birth and address. He told Marriott he had no form of identification, which was also untrue (his passport was in the car). Marriott then made a number of telephone calls in an unsuccessful attempt to establish the accused’s identity. The accused told him the vehicle belonged to his aunty, which was also untrue. Eventually, Marriott spoke to the accused’s father, who described the accused’s tattoos - the accused tried to continue the deception by saying he and his brother had identical tattoos.
When Marriott said he believed the accused had given him a false name, he said: “No, I swear on my mother’s life, I haven’t”.
Marriott said he had asked the accused to get out of the car as soon as he pulled over, because it was dangerous to stand on the road talking to the driver through the window. He said another reason for the request was that the accused would not be able to drive off. These are both reasonable motivations for the request. In any event, the accused got out of the car. He said in evidence he got out much later, but I disbelieve him about that. In either event, the accused did not assert that his choice to get out of the car or not was overborne by Marriott. It is more likely that he was anxious to get out of the vehicle because he was carrying illegal drugs in it (cf R v Chapman (2001) 79 SASR 342).
Mr Lyons, counsel for the accused, argued that the request to alight from the car was unlawful, but I reject that argument for the above reasons.
After Marriott had told the accused he believed he had given him a false name and address, Constables Winterfield and Hocking arrived on the scene. Marriott said that at around this time, the accused told him he would be honest, and gave his true name and date of birth. Again, the accused disputed that, saying he did not admit his true identity until after his passport was produced. This probably is less helpful to his credibility than the police version.
Mr Lyons submitted that requiring the accused to wait while pursuing these inquiries about his identity was unlawful. I reject that argument. The accused evinced no intention to leave, and no compulsion was exerted on him to remain. As I said, the continuing questions were authorised by s42, and at no stage was the accused required to remain for longer than was reasonably necessary to establish his identity.
In any event, Constable Winterfield had begun to inspect the accused’s vehicle by that stage. He said he noted that the rear tyres had “low tread” when he arrived. He said he began to inspect the vehicle (see Road Traffic Act, s160). He noted that there was no tread on the front tyres. The accused disputed this, saying the tyres were “pretty good - over 50%”, but again, I disbelieve him about that. I found Constable Winterfield a good witness, and I have no reason to doubt the truthfulness of his evidence. There was no need for Constable Winterfield to make up a story about the tyres to justify inspecting the vehicle - s160(1b) authorises a police officer to examine the vehicle “for the purpose of determining whether the vehicle has deficiencies (whether or not there is reason to suspect that the vehicle has deficiencies)”. I have no hesitation in preferring Constable Winterfield’s evidence to the accused’s about these matters.
Constable Winterfield said that after he inspected the tyres, he looked through the driver’s side window and noticed the accelerator foot pedal was missing. The accused denied it was missing. Again, I reject his evidence about that. Constable Winterfield opened the driver’s door, and when examining the seat belt anchor point said:
Q.When you then checked where it connected into the seat, did you notice anything.
A.I did. I observed half of a small tablet next to the console next to a silver container.
Q.The console itself as you’ve described, where was that located in the vehicle.
A.The centre console is in between the front driver’s and front passenger’s seat, in between both seats in the front of the vehicle.
Q.Can you describe to his Honour the structure of that console.
A.The console was - it’s not one of the consoles that has a close-down lid on it, it was a hard plastic covered console that has a lip on it where you could store items.
Q.Like a moulded structure.
A.Like a moulded plastic structure.
Q.What did you describe seeing in that console.
A.I saw half a small white tablet and a silver metal container.
Q.In the console itself, where was that tablet in relation to the silver container.
A.It was next to the silver container. I can’t recall as to what side, if it was towards the front of the vehicle, the container, or to the rear, or to the left or to the right.
Q.Was there anything covering the tablet or the silver container at all.
A.No.
Q.Did you have to lift anything or move anything to discover that.
A.No.
This piece of evidence is the crucial issue in the defence arguments about admissibility. The accused denied that there was a single half‑tablet on the console. He said the console had a lid and was closed. He admitted there was a small tin inside the console, and that it contained ecstasy tablets, but the implication was that the console had to be searched before the tablet could be found.
Constable Winterfield agreed that the presence of the half‑tablet was important, in the sense that it gave him reasonable cause to suspect that other illegal substances were in the vehicle and thus gave him the power to search it (see Controlled Substances Act 1984, s52(9), Summary Offences Act 1953, s68(1)(a)(ii), Gibson v Ellis (1992) 59 SASR 420 @ 425).
It is therefore necessary to examine the evidence given on the topic in greater detail.
Mr Lyons was critical of the prosecution evidence because there were some discrepancies between Marriott and Constable Winterfield. For example, Constable Winterfield said he pointed out the half‑tablet to Marriott (T86.7) whereas Marriott said he did not see it (T45). However, Marriott did say in evidence‑in‑chief (T33.37-T34.5):
Q.Once that passport was produced what did you do then in terms of you dealing with the accused.
A.I heard Constable Winterfield make a comment about a pill, which I didn’t understand and didn’t quite hear. He’s then asked me to go over to the Mercedes and he showed me a tin inside the vehicle that contained some small white tablets.
When Constable Winterfield’s evidence is examined more closely, the alleged discrepancy is less obvious. He said at T86.36-T87.11:
Q.You went and spoke to Marriott, you took him back to the accused’s motor vehicle, therefore, are you saying that you pointed out that tablet to him.
A.That’s correct.
Q.Did you pick up the tablet and show him.
A.I can’t recall if I picked up the tablet or if I pointed it out and said ‘This is where it is, here’.
Q.So you pointed out the tablet and I take it you also pointed out the tin, is that right.
A.That’s correct.
Q.What did Marriott then do.
A.I can’t recall if at that stage he’s taken the tin from the vehicle or if he’s left it there while I’ve continued searching.
Marriott said that he then took the tin over to the accused and said:
Q.What are these, mate?
A.Ecstasy. It’s for personal use. (T35)
When that passage of the evidence is analysed, it seems to me that the discrepancy between the police officers’ evidence is not whether there was a loose half‑tablet in the car, but rather at what point Constable Winterfield put it in the tin. If he put it in the tin after examining the logo on it, and before calling Marriott over, then Marriott would not have seen it loose.
It may be that Constable Winterfield is simply mistaken about when he put the loose half‑tablet into the tin. In my view, these pieces of evidence do not detract from the credibility of Constable Winterfield’s evidence that he saw the half‑tablet loose before he opened the tin. In my judgment, he was probably mistaken about the fact that it was still loose when Marriott came over to the car.
There were some other minor discrepancies in the police evidence, but, again, they were on minor issues and do not lead me to doubt the truthfulness of the evidence on the essential points.
Having found that Constable Winterfield’s suspicion that there were illegal drugs in the car was reasonable on the basis of the presence of the half‑tablet, then clearly Constable Winterfield’s subsequent search of the vehicle was authorised by s52(9) of the Controlled Substances Act. In Gibson v Ellis (supra), the Court of Criminal Appeal held that the power comes from both the Summary Offences Act and the Controlled Substances Act. In that case, the police officer, having lawfully stopped the vehicle, noticed a spoon and a filter tip on the passenger seat of the vehicle. Debelle J said at p426:
Once the police officer saw the spoon and the filter tip and decided that he wished to search the appellant, subsection(6) of s52 of the Controlled Substances Act came into operation. He could only search the appellant if all the conditions of s52(6) were satisfied. In my opinion, they were. The police officer suspected on reasonable grounds that the appellant was in possession of a substance and equipment in contravention of the Act and was therefore authorised to search the appellant.

I therefore find that there was no unlawfulness associated with the search of the car, or that tainted the subsequent search of the accused’s house on 30 April 2004. Accordingly, there is no basis upon which the discretion to exclude evidence, either on public policy grounds, or on the grounds of unfairness to the accused (see R v Lobban (2000) 77 SASR 24 @ 51 per Martin J).
For the same reasons, there are no grounds to exercise a discretion to exclude the evidence of conversations on 11 July 2004 arising from the alleged “taint” from the events of 30 April 2004.
Section 79A Summary Offences Act
Mr Lyons advanced another ground to exclude the interview on 11 July 2004, namely that Anderson breached s79A of the Summary Offences Act. Section 79A(1)(a) entitles an arrested person to make, “in the presence of the police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts”.
While the police were still at the accused’s house on 11 July 2004, the accused asked Anderson if he could call his brother. Anderson refused this request (Exhibit VDP12, p9).
Anderson explained that he suspected that the brother was also involved in the home invasion. He pointed to information he had from telephone records that there were a total of four telephone calls between the accused and his brother between 2349 on 19 April and 0322 on 20 April 2004, the night of the home invasion, which occurred at about 0300 (T141). Anderson said he suspected that the call to the brother might result in a “loss of evidence” (T144).
Section 79A(2) of the Summary Offences Act entitles the police officer to decline to permit such a call “if the police officer has reasonable cause to suspect that communication between the person in custody and that particular person would result in an accomplice taking steps to avoid apprehension or would prompt the destruction or fabrication of evidence”.
In my judgment, Anderson’s concerns amounted to reasonable cause to suspect that such a call would result in the destruction of evidence. There were four alleged perpetrators of the home invasion. Excluding the accused, three were still at large. Anderson had insufficient evidence to confront any of them at that stage. However, having regard to the telephone calls, his suspicion was reasonably based.
Accordingly, I find that Anderson’s refusal to allow the accused to telephone his brother was lawful, as it was authorised by s79A(2) of the Summary Offences Act.
Voluntariness
Mr Lyons argued that the interview should also be excluded because the accused did not participate “in the exercise of a genuinely free choice” (R v Hallam and Karger (1985) 42 SASR 126 at p135-6 per King CJ).
The accused’s evidence about that was, firstly, that during the conversation at the house, there was a break of one to two minutes when the tape was changed, and Anderson said to him “You’re going down for this, Michael, you’re not going to Bali” and “This is serious. You’re not getting bail, either” (T195).
These comments were allegedly made in the course of a lengthy conversation otherwise recorded on video. There was nothing either before or after the tape change which even faintly suggested that something inappropriate was said during the tape change. After the tape change, Anderson explained carefully and at length the procedure applicable to bail (Exhibit VDP12, p13-14), and then on p15 the accused said:
A.So this might mean that, what, I can’t go to Bali on Friday?
Q...... well, obviously if we oppose bail and you’re not getting police bail and you go to court and the court doesn’t give you court bail .....
And further discussion of these issues then ensued.
During the interview back at the Port Adelaide Police Station, the issue of bail was raised again, and again it was discussed by Anderson in a careful and professional manner.
It is completely incredible that Anderson would make such completely inappropriate comments during a one to two minute break in taping, and then two lengthy conversations would proceed from there, one at the house and the other at the Port Adelaide Police Station, as if nothing had happened.
In my view, the accused’s question quoted above gives the lie to his evidence about this matter. He would not have asked that question about Bali in the way he did if Anderson had said those things to him only minutes earlier. I am satisfied that his evidence about these alleged comments by Anderson is untrue, and I reject it.
Further, the accused alleged in evidence that after he found out that his lawyer would not be coming to the Port Adelaide Police Station, he participated in the interview because (T195 l33-37):
A.Only at the time that Detective Anderson made those comments to me because I felt that if I didn’t answer any of the questions that they did have for me I’d look guilty in their eyes, it was like I had got something to hide.
Again, this is inconsistent with the accused’s behaviour during the interview. The sequence of events during the interview was:
·the accused confirmed that he did not require the presence of a solicitor at the interview (p3 - note that the answer to A21 should be “No”);
·he was cautioned about his right to silence;
·he was advised of the allegations;
·when asked who gave him the newspaper cutting, he said “I’m not going to mention names” (p7);
·he told the police he had bought many of the items they had seized from the house, but could not remember where or when this happened;
·he tried to negotiate bail on the basis of whether police would help him if he “gave up” the people (p11);
·he admitted that police took the shoes with the “big M” on the side from him at the City Watch House (he denied that in evidence before me, saying he was wearing different shoes) (p14-15);
·he declined to answer why he purchased the baseball bat until after he had spoken to his solicitor the following day (p18);
·when he did not appear to like the topic being discussed, he told Anderson to go to the next question (p20, 23);
·he explained where the rolls of adhesive tape came from (p21-2);
·he denied he knew the victim of the home invasion, David Holton (p30);
·he threatened to find the person who sold the property to him first before giving him up to the police (p31);
·after saying he needed legal advice before giving the name, he made another telephone call to his lawyer (he had telephoned him from the house, earlier), and, while the lawyer was still on the telephone, said to Anderson:
Er, he wants to know if I give the name, what happens about my bail? Can youse organise for me to be released tonight or what?
and, later, to the lawyer:
Yeah, exactly right. Well, they’re not budging so I’m not going to budge.
Anderson then repeated that he refused to negotiate the question of bail for information (p33-34);
·he denied he knew Adam Salagaras, another victim of the home invasion (p39); and
·there was further discussion about the property found at the accused’s house, and the interview concluded with discussion of the forensic procedures to take DNA samples (p47-8).
The accused also said that he thought the “actual proper interview” was happening the following day, when his solicitor was to be present (T197).
I reject out of hand the accused’s assertion that his participation in the interview was not in the exercise of a genuinely free choice. It was abundantly clear that an interview was taking place. It was being video taped. The accused was appropriately cautioned on a number of occasions. He admitted he was familiar with police procedure (T202). The accused spoke to his lawyer twice that day, once during the interview. At no point was there a request that the interview not proceed. The accused remained in control throughout, answering some questions and not others, negotiating, asking his own questions, requesting toilet breaks and smoking breaks. I reject his assertions that he felt compelled to answer the questions - the suggestion appears ridiculous when the tape is viewed and the transcript read. They are simply untrue.
The application to exclude the interview on the grounds that it was involuntary is refused.
That would appear to deal with the applications numbers 3, 4, 5 and 6 outlined above.
I will now proceed to consider applications 1 and 2 in relation to the destruction of evidence.