R v Hall - [2016] SADC 104

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HALL & ANOR
[2016] SADC 104
Reasons for Ruling of Her Honour Judge Tracey
25 August 2016
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
Both accused charged with manufacturing a controlled drug and unlawful possession - police stopped vehicle driven by accused Hall - prescribed equipment and cash found by police on search of vehicle - pseudoephedrine found on search of accused Ivanyi - whether searches were lawful - application by accused Hall to exclude evidence of search of vehicle - application by accused Ivanyi to exclude evidence of search of his person.
Held: Search of vehicle and accused Ivanyi were lawful.

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION
Application to exclude evidence of statement made by accused Ivanyi after video interview ceased - whether statement formed part of an interview requiring compliance with s74D of the Summary Offences Act 1953 - whether interests of justice require admission.
Held: Evidence of statement excluded.
Summary Offences Act 1953 (SA) ss 74C, 74D, 74E, s 75, s 81; Controlled Substances Act 1984 (SA) s 33(3), s 52(9), referred to.
R v Chapman [2002] SASC 255; R v Rogers [2011] SASC 40; R v Willingham (No 2) [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; Dumbell v Roberts & Ors [1944] 1 All ER 326; R v Nayda (1999) 203 LSJS 465; R v Smith (2003) 228 LSJS 262; R v Mekic (2004) 88 SASR 387; R v Dam and Nguyen Case Stated on Questions of Law (No 2 of 2015) (2015) 123 SASR 511, considered.

R v HALL & ANOR
[2016] SADC 104
Introduction

The defendants are jointly charged with the offence of Manufacturing a Controlled Drug pursuant to s 33(3) of the Controlled Substances Act 1984 (‘the Act’) and Unlawful Possession pursuant to s 41(1) of the Summary Offences Act 1953 (‘SOA’) and have each filed an application pursuant to Rule 49 seeking the exclusion of certain evidence.
Mr Hall asks the Court to exercise its discretion to exclude evidence which resulted from the search of a Holden Commodore registration XEM310 (‘the vehicle’) that he was driving on 15 January 2015, on the basis that the search was unlawful.
Mr Ivanyi argues that his arrest was unlawful and that as a consequence a search undertaken of Mr Ivanyi, which revealed 34.3 g of pseudoephedrine, was also unlawful. Furthermore, he seeks the exclusion of an alleged admission made by him to police on the basis that the admission was obtained in breach of s 74D of the SOA and is ‘manifestly untrue’.
Background
Detective Brevet Sergeant Zetter, (‘Sergeant Zetter’) was involved in an investigation into the activities of Mr Hall which resulted in police stopping and searching the vehicle at about 10.15 am on 15 January 2015. Both Mr Hall and Mr Ivanyi were in the vehicle and the search revealed prescribed equipment, items which tested positive for methylamphetamine, hypophosperous acid and cash. Mr Hall and Mr Ivanyi were arrested. Detective Brevet Sergeant Bone (‘Sergeant Bone’) activated a video recorder, recording the interview between Mr Ivanyi and Detective Brevet Sergeant Howe (‘Sergeant Howe’). Mr Ivanyi denied any knowledge of the items found in the car and indicated he did not wish to answer police questions. Shortly after arrival at the Elizabeth police station, the battery of the video recorder used to record Mr Ivanyi was about to run out of charge. Mr Ivanyi was told that there would be no further conversation and that if he wished to say anything, a new video recorder would have to be activated. The video recording ceased at 11.14 am.
Mr Ivanyi was then searched and his clothing seized. The search revealed two plastic tubs containing what was found to be 34.3 g of pseudoephedrine. At around 12.13 pm as he was being walked between cells, it is alleged that Mr Ivanyi said to Sergeant Howe ‘it is what it is man, it’s all mine, even the shit in the car. Ace had nothing to do with it’ (‘the statement’). Sergeant Howe noted the statement in his notes.
At 12.29 pm Sergeant Howe interviewed Mr Ivanyi on video. Mr Ivanyi denied having made the statement.
Sergeants Zetter, Howe and Bone gave evidence. I found each did their best to recall the events accurately. Each was credible and I am satisfied I can rely on their evidence.
Sergeant Zetter
Sergeant Zetter said that in November 2014 he became involved in an ongoing investigation into the activities of Mr Hall, being informed about his activities from a briefing conducted around that time, and from information set out in reports known as ‘SHIELD Intelligence Reports’.[1] The general effect of the information set out in those reports and the reports he subsequently received, was that Mr Hall was manufacturing methylamphetamine and selling the drug in country locations north of Adelaide. The reports date from 2 August 2014, through to 28 December 2014. Sergeant Zetter said that at the time he became involved in the investigation, he was aware Mr Hall had been convicted on at least two occasions of manufacturing methylamphetamine and was currently serving a period on parole.
[1] Exhibit VD P1.
Sergeant Zetter made an application to receive what is known as ‘live call associated data’ concerning a mobile phone service he understood was used by Mr Hall. He set up an alert such that he received periodic updates of calls made from Mr Hall’s phone service and the telephone towers to which the calls were connected.
In January 2015, Sergeant Zetter ordered surveillance on Mr Hall’s movements, and his association with other people, vehicles and premises. Surveillance was undertaken on 12 January 2015 which revealed that Mr Hall had been driving the vehicle, which was registered in his mother’s name, in the same location as was identified from the telephone data.
Throughout the period between 12 January and 15 January 2015, Sergeant Zetter continued to receive live location updates in relation to Mr Hall’s phone service. On 14 January 2015 at around 5.00 pm, Sergeant Zetter received a message to the effect that Mr Hall (or at least his phone) was travelling north. He described the tower that had identified the phone as ‘north by a couple of hours’.
On 15 January 2015, Sergeant Zetter received a location update at about 9.12 am. The update indicated that Mr Hall’s phone was leaving the Lochiel area. A second update indicated that the phone was in the Two Wells area. From this information, it was assumed the vehicle was travelling south.
Sergeant Zetter briefed other police officers and organised police to set up at two locations waiting for the vehicle to come past. The first was on Port Wakefield Road, before the Waterloo Corner turnoff, close to Mr Hall’s home address, and the other was located in a street nearby in case the vehicle went a different way. About eighteen minutes after Sergeant Zetter received the Two Wells alarm, the vehicle was observed towing a trailer, travelling south on Port Wakefield Road. Police followed the vehicle until it was able to be stopped after lights and sirens were activated.
Sergeant Zetter said that the vehicle was stopped in order to identify that Mr Hall was in the vehicle with the intention of conducting a search pursuant to the Act. He said this was his intention based on his suspicion that inside the vehicle he would locate prescribed equipment and/or precursors to be used in the manufacture of methylamphetamine.
Sergeant Zetter said that he had noticed a rope hanging from the trailer at the time that it was being driven. As he had understood there were prior occasions when Mr Hall had run from police when he had been stopped, and having noticed there was someone else in the vehicle, Sergeant Zetter said he decided to use the rope ‘just to defuse the situation’ and to wait for police at the other set up before starting the search. He said that in reality the rope did not form any part of his decision to stop the vehicle.
Other officers briefed in relation to the matter had been notified by radio that Mr Hall’s vehicle had been identified and they attended at the scene shortly after.
When the officers from the second set up arrived, namely Detective Brevet Sergeant Bone (‘Sergeant Bone’), and Detective Brevet Sergeant Gladigau (‘Sergeant Gladigau’), Sergeant Zetter stayed with Mr Hall while Sergeants Bone and Gladigau conducted a search of the vehicle. They notified him that they had located glassware commonly used in the manufacture of methylamphetamine and as a consequence he arrested Mr Hall.
In cross examination, Sergeant Zetter was asked why Mr Hall’s premises had not been searched when information was received in December 2014 to the effect that Mr Hall had ‘recently completed a large cook of methylamphetamine’. Sergeant Zetter said that in his experience, it is usually the case that if people complete a large cook they offload the product very quickly and information concerning Mr Hall’s phone service could not precisely determine his location. Different phone towers could simultaneously identify the phone meaning that it could be close to a particular phone tower or quite some distance away.
It was suggested to Sergeant Zetter that police knowing Mr Hall had been involved in the methylamphetamine industry, and given that he had just been released from prison, took the opportunity to search the vehicle. Sergeant Zetter rejected that assessment and said that this was the first opportunity where police knew Mr Hall was going to a country location and returning, where they were able to do some operational policing and pull the vehicle over.
Sergeant Zetter explained the difficulties associated with arranging surveillance immediately such that Mr Hall’s location could have been identified earlier and said it was not known exactly where he or the possible methylamphetamine ‘cook’ was located. Police had no information that Mr Hall had actually done a cook in that country location but were suspicious from the information received of what was occurring. Sergeant Zetter rejected the suggestion that he had no reasonable suspicion such as to enliven his powers under the Act.
Sergeant Zetter said that the comment he had made concerning the rope hanging from the trailer was an operational decision made at the time because he was aware that Mr Hall had decamped or run off from two previous locations. He said that he had not discussed any kind of pretext that he might use with other police officers to stop the vehicle.
Sergeant Zetter said he was aware Mr Hall’s mother attended at the scene very soon after the vehicle had been stopped and knew she had been asked to leave. He said he had assumed, when he saw Mr Hall on the phone when the vehicle was first stopped, that Mr Hall had contacted his mother to say where he was and that he was with police.
Sergeant Scott Howe
Sergeant Howe said he attended a briefing on 15 January 2015 and was told by Sergeant Zetter that he was investigating a male by the name of Ace Hall in relation to drug related offences and had received information that Mr Hall was travelling back from an unknown country location where it was suspected he was involved in the manufacture of drugs.
Sergeant Howe was aware they were stationed on Port Wakefield Road in order to locate the vehicle that Mr Hall was suspected of driving and returning from manufacturing drugs. It was intended to stop the vehicle to see if Mr Hall was the driver. He said that when he saw the vehicle he noticed a rope hanging from the rear of the trailer that was being towed. When the vehicle was pulled over Sergeant Zetter instructed him to conduct a search of the vehicle. He found a large box which contained amongst other things, various types of glassware consistent with items used in the manufacture of methylamphetamine. Sergeant Howe said that he placed Mr Ivanyi under arrest and gave him his rights. A video camera was activated by Sergeant Bone. Mr Ivanyi indicated that he was not going to be answering police questions. Sergeant Howe said the entirety of the conversation he had with Mr Ivanyi was captured on video and subsequently transcribed. On arrival at the Elizabeth cells, the video camera battery was about to go flat. At around 11.14 am Mr Ivanyi was informed that the video camera was about to run out and he was advised to the effect that if he wanted to talk further, the video camera would need to be activated. Mr Ivanyi repeated that he did not want to talk.
Sergeant Howe described police procedure when an arrested person is brought into the cells and said that having decided that Mr Ivanyi’s clothing should be seized, he and Sergeant Bone, took Mr Ivanyi into a padded cell. Sergeant Bone stepped into the cell with Mr Ivanyi and his items of clothing were seized and placed into brown paper bags. Sergeant Howe said that at the time he was just standing in the doorway watching the process. Once Sergeant Bone received Mr Ivanyi’s shirt and shorts, Sergeant Bone conducted a search of Mr Ivanyi and located two plastic tubs wrapped in black electrical tape found in Mr Ivanyi’s underpants.
Sergeant Howe said that it was on the way to the holding cell that Mr Ivanyi made the statement. He told Mr Ivanyi that he could not talk to him until he got the video. Mr Ivanyi was then placed in the holding cell and Sergeant Howe made a note of the conversation, recording the time it occurred as 12.13 pm.
As a result of what Mr Ivanyi had said, Sergeant Howe took a new video camera and conducted an interview in regards to what had been located in the padded cell, that is, the two tubs.
In cross examination by Mr Healy on behalf of Mr Hall, Sergeant Howe said there was no discussion between police before the vehicle was stopped about the rope hanging from the trailer. Sergeant Howe was referred to a statement he had made to Mr Ivanyi about the main reason for pulling the vehicle over was because of ‘your insecure load in the trailer you were carrying’. While Sergeant Howe agreed that was what was said, the rope was not the main reason the vehicle was pulled over. He agreed there was nothing visible that could have raised a suspicion under the Act and the search was based solely on what he had been told by Sergeant Zetter.
In cross examination by Mr Retalic on behalf of Mr Ivanyi, Sergeant Howe agreed the vehicle was always going to be stopped as it was suspected Mr Hall was the driver. He agreed there would have been general conversation with Mr Ivanyi that was not recorded and accepted as plausible that there had been discussion between police before the vehicle was stopped about a way in which it might be possible to stop the vehicle without alarming Mr Hall. Sergeant Howe said he had glanced at the contents of the trailer and accepted that the trailer possibly contained a couple of bags of cement.
Sergeant Howe was questioned as to his knowledge of the scheme provided by s 74D of the SOA. It was put to him that at 12.13 pm he was aware that the video camera was going flat and he was challenged as to why an important or potentially important conversation was not attempted to be recorded and recaptured on video until 12.29 pm. Sergeant Howe said that without seeing what was in the tubs, ‘it could have been anything’ but conceded that in making the statement, Mr Ivanyi seemed to be referring to what was in the tubs particularly given that it was made following their discovery.
Sergeant Howe was asked about differences between what he put to Mr Ivanyi when he further interviewed him and what Sergeant Howe had recorded in his statement dated 2 March 2015.
The statement read as follows:
On completion of the search I started to escort IVANYI to a holding cell.
He said: ‘It is what it is man. It’s all mine, even the shit in the car. Ace had nothing to do with it’.
I said: ‘I can’t talk to you until I get a video’.
I then had no further conversation with IVANYI and placed him in a holding cell.
This was to be compared with what Sergeant Howe put to Mr Ivanyi on the further interview when he questioned Mr Ivanyi as follows:
QOn closing the door you then said to me ‘it is what it is man, it’s all mine, even the shit in the car.
Sergeant Howe accepted the difference and said that he was not entirely sure if the door of the holding cell was completely closed and that the conversation ‘would have been in the process of going from the padded cell into the holding cell.’ He referred to the notes he made at the time,[2] which detailed the alleged admission by Mr Ivanyi prior to a note recording Mr Ivanyi being placed in the holding cell.
[2] Exhibit VD D3.
Sergeant Howe said that in relation to his decision to ask Mr Ivanyi further questions, in particular whether he wanted to comment on certain matters, despite having said he did not wish to answer, that there was uncertainty in his mind about whether Mr Ivanyi wanted to answer questions. He said that from memory, ‘we were cutting each other off when we were talking’.
Sergeant Howe agreed that Mr Hall's mother turned up on the side of the road and that Mr Ivanyi was telling him he had been helping Mr Hall's mother work on a house. Mr Ivanyi asked that police speak to Ms Hall as he had no opportunity to do so, suggesting it would seem that he had not arranged for Ms Hall to make something up for his benefit.
Sergeant Howe agreed that he did not go to Mr Hall's mother and ask any questions as he did not think it was worth chasing up that potential area of inquiry.
Sergeant Bone
Sergeant Bone said he received a briefing from Sergeant Zetter that police may be involved in the stop and search of a vehicle containing Mr Hall when he was believed to have been returning to his home address. After the briefing he attended with Sergeant Gladigau to an area near Shepley Crescent at Burton. He understood that this was close to the Mr Hall’s address. Later he was contacted over police radio by Sergeant Zetter, advising that they had observed the vehicle. Sergeant Bone attended at the scene where the vehicle was stopped. At the time he observed both occupants speaking to police on the side of the road. He was not involved in the search of the vehicle and activated a hand held video camera in relation to Mr Ivanyi. Once at the Elizabeth Police Station, Mr Ivanyi was presented to the charge counter and advised that his clothes would be seized and he was taken to a padded cell and his clothes seized. Sergeant Bone conducted a search of Mr Ivanyi and inside his underwear he located a cylindrical shaped item covered in black electrical tape which he handed to Sergeant Howe. He and Sergeant Howe then took Mr Ivanyi to a holding cell. Sergeant Bone did not recall Mr Ivanyi saying anything. He was present when the video camera was reactivated to further interview Mr Ivanyi.
In cross examination Sergeant Bone agreed that the trailer being towed by the vehicle was caged and loaded with things like sealed cardboard boxes, tiles and bags of cement. He agreed that the trailer contained ‘quite a bit of stuff’ and that he had seen Mr Hall’s mother arrive but did not see any police talking to her or asking her to leave.
Sergeant Bone agreed that if there had been any comment that he deemed was of relevance, he would have made note of it.
The Search
The relevant question is whether, at the time Sergeant Zetter made the decision to stop and search the vehicle, he had a reasonable suspicion in satisfaction of s 52(9) of the Act.
In relation to the search of vehicles, s 52(9) of the Act provides:
(9)If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may-
(a)     require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and
(b)     detain and search the vehicle, vessel or aircraft; and
(c)     seize and remove from the vehicle, vessel or aircraft anything that officer reasonably suspects would afford evidence of an offence under this Act.

Mr Healy submitted that given the very brief detail and information possessed by Sergeant Zetter prior to making the decision to stop and search the vehicle, the search was unlawful. The SHIELD reports gave nothing by way of any detailed information other than someone who police knew had offended before, was in the business of cooking methylamphetamine in a country location. There was no evidence of anything from the surveillance other than Mr Hall might be driving a particular vehicle. That did not mean he was necessarily currently in the business of cooking methylamphetamine.
There should, he submitted have been more information gathered before police acted as they did. In particular, surveillance could have followed Mr Hall around, perhaps disclosing him purchasing the ingredients one would find attached to a methylamphetamine laboratory. A phone tap would potentially have indicated what plans Mr Hall was making. Information that could give rise to a reasonable suspicion was easy enough to obtain and it was not.
Mr Healy was critical of the decision by police not to take any action as a result of the information set out in the final SHIELD report in December 2014. Despite what was contained in the report, Mr Hall was not pulled over until the middle of January, when really no further information had been received.
He described the action by police as ‘a turnover’ carried out in the hope that something would pop up, all based on hearsay and the knowledge that Mr Hall had been involved in the industry in the past and that he was probably up to it again. I was referred to R v Chapman.[3] In that case, Williams J excluded evidence from a search because police, after having observed the accused in conversation with someone who had the day before been arrested in relation to a cannabis crop, used their powers as an opportunity to examine the accused’s vehicle.
[3] [2002] SASC 255.
In R v Rogers, in discussing s 52(9), Justice Duggan said:[4]
It is, of course, important to have regard to the legislative context in which the concept of reasonable suspicion applies. Section 52(9) of the Act was drafted with the competing considerations of the rights of the citizen and the importance of not unduly restricting police investigations in mind. Suspicion is a less onerous state of mind to establish than belief or knowledge. However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment. It is relevant to note that the reasonableness attaches to the suspicion and this requires consideration of the circumstances as known by the police officer.
[4] [2011] SASC 40.
In R v Willingham (No.2) it was said that the test to be applied by a Judge when determining whether a police officer’s suspicion was reasonable was as follows:[5]
The questions to be asked in each case are first, whether the police officer held a genuine suspicion and second, based on the matters known to the officer, whether that suspicion was reasonable. The test of reasonableness is to be judged by the Court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held. Each case will, of course, turn on its own circumstances. On the one hand, the police officer may be required to make a momentary decision and, on the other hand, the suspicion may be formed after due consideration of material and information that has become known to the police officer.
[5] [2012] SASCFC 104 at [10] (per Gray, Sulan & Stanley JJ).
A number of more recent Court of Criminal Appeal cases have discussed the meaning of reasonable suspicion.
In R v Nguyen,[6] the Court said:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
[6] (2013) 117 SASR 432.
And further[7]
Importantly, s 52(6) and s 52(9) of the CSA require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise.[8] It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.
[7] Ibid at [22].
[8] R v Davidson (1991) 54 SASR 580, 584.
In the second Nguyen,[9] the Court reiterated these principles regarding what constituted a reasonable suspicion.
[9] [2015] SASCFC 7.
In my view, the case before me is not analogous to those cases where police had suspicions of a general nature. In R v Dam and Nguyen; Case Stated on Questions of Law (No 2 of 2015),[10] Vanstone J said as follows:
Of course each case turns on its own facts but, importantly, in both [Nguyen] cases, the suspicions expressed by the relevant officers were of a general nature only. In the earlier Nguyen case police determined to impede the movement of and to search a vehicle which was that of a known drug dealer in circumstances where they were not able to determine who was then driving it. In the later Nguyen case a Holden Commodore in which a police officer had previously located drugs, was seen to emerge from a house. The police officer did not recognise the driver, but she stopped and searched the Commodore and located some controlled substances. The searching officer failed to identify in evidence what it was she suspected that entitled her to stop and search the Commodore. The manner of her expression — that she had “enough suspicion to pull over the vehicle … and search” suggested that she had not applied her mind to the requirements of the section.
[10] (2015) 123 SASR 511 at [38].
I accept that from the SHIELD reports it is open to infer that Mr Hall was actively involved in drug manufacture and Sergeant Zetter was entitled to rely on hearsay information that was included in the SHIELD documents.[11] The reports detailed information given to an intelligence officer to the effect that Mr Hall himself was speaking quite openly about ‘cooking’ methylamphetamine.
[11] R v Rogers [2011] SASC 40 at [22].
The suspicions in this case were not of a general nature given the surveillance, the mobile telephone data, and information about Mr Hall’s activities in the SHIELD reports. Sergeant Zetter had a specific suspicion that Hall was in the vehicle and it would contain evidence of an offence against the Act.
The facts in this case can be distinguished from those in Chapman where the only basis for the search appears to have been that the accused was seen speaking to a cannabis dealer where there was evidence of a practice of police ‘turning’ vehicles over.
It is not the case that the vehicle was ‘turned over’ simply because Mr Hall had prior convictions and police had information he might be manufacturing drugs. Nothing turns in my view, on the criticism levelled at police for not having acted sooner. To have acted sooner may well have formed the basis for legitimate criticism of Sergeant Zetter’s decision. Quite properly, Sergeant Zetter did not it seems, consider that he was in a position just from the SHIELD reports to take any action.
The combination of the different sources of information provided Sergeant Zetter with a reasonable suspicion that there was evidence of an offence against the Act in the vehicle. It is in my view clear from Sergeant Zetter’s evidence that in forming his suspicion, he had regard to the information provided by way of the SHIELD reports that informed him that Mr Hall was manufacturing drugs in a northern country location; was aware that Mr Hall’s mobile telephone service travelled north on 14 January; and was aware that Mr Hall was returning from that location in all likelihood in the vehicle. Based on all that information, it would be reasonable for Sergeant Zetter to suspect that the vehicle may have contained evidence relevant to an offence under the Act. It was clearly the case that Sergeant Zetter had applied his mind to the relevant questions and I dismiss Mr Hall’s application.
Mr Ivanyi
Mr Retalic argued that Mr Ivanyi’s arrest was unlawful and as a consequence, the search which occurred later at the police station, was also unlawful because Mr Ivanyi was in unlawful detention at the time.
The power to arrest arises from s 75 of the SOA as follows:
75—Power of arrest
A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence …
While Mr Retalic did not dispute that police had a suspicion, it was not a reasonable suspicion. The lack of ‘reasonableness’ was he said, based in part on the failure by police, for no good reason, to investigate an obvious area of inquiry. When Mr Ivanyi was spoken to by police, his position was clear. He denied having anything to do with the items found in the vehicle, described what his involvement was and pointed out to police that Ms Hall (who he had not had the chance to ‘school up’) could support his version of events. Failure to speak with Ms Hall, who may well have said a number of things in support of Mr Ivanyi’s denials, meant police could not have had a reasonable suspicion. I was referred to Dumbell v Roberts & Ors,[12] where Mr Dumbell had been charged with offences relating to the possession of an excess quantity of soap flakes rationed during World War II. When asked by the authorities as to how he had come by the soap flakes, he referred them to his friend where he worked. Police went to his place of employment but did not make any enquiries of the friend. Mr Dumbell was eventually acquitted and then sued for wrongful detention. The court concluded as regards to the issue of whether or not his arrest was justified on the basis of a reasonable suspicion, that although there might have been a suspicion it was not reasonably held because police failed to make the enquiries that would be expected and in particular of the man that he nominated as being the person who had legitimately given him the soap flakes.
[12] [1944] 1 All ER 326.
The power for police to search a person is set out in s 81 of the SOA, which reads as follows:
81—Power to search, examine and take particulars of persons
(1)A person who is taken into lawful custody may be searched in accordance with this section and anything found as a result of the search may be removed.
If Mr Ivanyi was not ‘lawfully’ in custody, the search was unlawful.
Police were required to have a reasonable cause to suspect that Mr Ivanyi had committed an offence. That police did not immediately investigate what was suggested to them by Mr Ivanyi cannot mean of itself that an arrest was unlawful.
In my view, the facts of Dumbell differ in that Mr Dumbell had provided police with a line of inquiry that was directly relevant to the offence with which he was charged. In this case, the highest Ms Hall’s assistance could go was to say that he had been with her at all times. It would in the circumstances here, impose ‘a duty on police to try and prove innocence’.[13] Once police found the prescribed equipment there was a reasonable cause to suspect that the occupants of the vehicle might be in joint possession of that equipment which would give rise to an offence under the Act. Both Mr Ivanyi’s arrest and his subsequent search were lawful.
[13] Chapman at 329.
The statement
The obligation for police to comply with certain procedures when proposing to conduct an interview, is set out in s 74D of the SOA as follows:
74D—Obligation to record interviews with suspects
(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 make an audio visual record of the interview, an audio visual record of the interview must be made;
(b)   if it is not reasonably practicable to make an audio visual record of the interview but it is reasonably practicable to make an audio record of the interview, an audio record of the interview must be made;
(c)   if it is not reasonably practicable to make either an audio visual record or audio record of the interview—
(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 an audio visual record made of the reading; and
(iii)when the audio visual 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 audio visual 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 an audio visual record or audio record 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; …
The SOA provides that an interview will be inadmissible unless there has been compliance with s 74D, or the interests of justice require its admission in the following terms:
74E—Admissibility of evidence of interview
(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.
Was it an ‘interview’?
The SOA gives a definition of interview as follows:
Interview includes –
(a)a conversation; or
(b)part of a conversation; or
(c)a series of conversations.
The statement by Mr Ivanyi was not as a result of anything said by Sergeant Howe and was entirely voluntary and could not have been anticipated. Sergeant Howe confirmed the advice given earlier that he could not talk with him.
Sergeant Howe said that prior to Mr Ivanyi making the further statement, there was no intention to interview him further in regards to ‘the items found in the Holden Commodore.[14] When asked what he did as a result of the further statement, Sergeant Howe said that he ‘got a new video camera and conducted an interview with him in regards to what I located in the padded cell, being the two tubs’. Clearly it was Sergeant Howe’s intention to interview Mr Ivanyi again in light of the tubs, rather than simply because of the further statement.
[14] Transcript page 39 line 36.
I was referred to the decisions in this Court of R v Nayda,[15] and R v Smith,[16] both of which discuss the meaning of ‘conversation’ in s 74C.
[15] (1999) 203 LSJS 465.
[16] (2003) 228 LSJS 262.
In Nayda, the admission into evidence of three informal statements made to police was challenged. In discussing the definition of ‘interview’ Judge Lunn said as follows:[17]
Interview is defined in s 74 C to include a conversation. This considerably broadens what would otherwise be the meaning of “interview” and extends it well beyond a formal interrogation. It encompasses an investigating officer who proposes to have any conversation with the suspect… It does not always extend to where one person merely makes a gratuitous unsolicited comment to another, but if the recipient of such a comment responds to it and pursues a dialogue in consequence of it, the comment then becomes part of a conversation.
[17] At page 471.
In Smith, the accused was charged with a number of offences of violence. The Court excluded from evidence a conversation, two volunteered comments and a video-taped interview had with police following their attendance at the accused’s home. The conversation was at the front fence of the accused’s premises wherein police informed him of his arrest and rights. The accused gave some responsive answers but essentially denied the offences.
The first comment was made in a police car on the way to Port Adelaide police station. The accused volunteered a comment ‘I haven’t done anything. I haven’t touched any young girls or anything’. The second was made at the station in a stairwell on the way to a video interview when the accused volunteered the comment ‘No wonder he fucking gets what he got, I tried being good, but fucking hell, hm’.
The conversation and the comments were not recorded by the relevant police officer other than in his notebook. The interview at the police station was videoed and the police officer’s notes were read to him.
In discussing the meaning of ‘conversation’ within s 74C, Judge Lee said:[18]
I acknowledge that, according to its dictionary meaning, “conversation” signifies a dialogue between two or more people. Nevertheless, given that the potential for mischief lies as much with unsolicited comments as with solicited comments, the legislature could scarcely have intended, in my opinion that the protection of the Act would be denied to an unsolicited comment, merely because the recipient chose not to respond.
[18] Ibid [13].

In R v Mekic,[19] a police officer received a telephone call from a person purporting to be Mr Mekic. The officer invited Mr Mekic to attend for an interview, but refused to speak to him further on the telephone. Mr Mekic interrupted and gave an account of the events in question which was later proven to be a lie. An appeal was brought against the trial judge’s decision to admit the police officer’s evidence of the telephone conversation. In the Court of Criminal Appeal decision, Gray J (with whom Bleby and Sulan JJ agreed) said:[20]
While Detective Yazarloo did have a suspicion about the involvement of Mr Mekic in the offending, and did intend to interview him later, the telephone conversation did not amount to an interview such that the requirements of s 74 were enlivened. There was no request for information made by the detective. The information proffered by Mr Mekic did not result from any questioning by the detective. The circumstances of the telephone call and the interchange between Mr Mekic and the police officer did not amount to an interview for the purposes of s 74 of the Act.
[19] (2004) 88 SASR 387.
[20] Ibid [29].
In my view the circumstances in the case before me are quite different from those in Mekic. Mr Ivanyi had already been interviewed, and while at the conclusion of that interview, Sergeant Howe had no intention of asking more questions, that position changed once the tubs were discovered. Sergeant Howe intended and did, pursue a line of questioning in relation to the comment and the tubs. He was required to comply with the requirements of s 74D.
Mr Retalic submitted that it was simply the case that police did not comply with the requirements of s 74D of the SOA. Once there was no recording either by video or audio recorder, police failed to do what was required or to act as soon as reasonably practicable. Furthermore, Mr Ivanyi was not advised in accordance with the requirements of s 74D (1)(c)(iii) and (v).
Mr Retalic accepted that Mr Ivanyi told police in the further interview that he was not going to answer questions and denied saying what police alleged, but given the seniority and supervisory role of the police officers involved, compliance with s 74D was particularly important. The availability of technology ought to have avoided this situation and police should have dealt with the flat battery as soon as they knew it was flat. We are left in the situation Mr Retalic argued, where the fundamental question is whether Mr Ivanyi said it or not, precisely what s 74D is designed to avoid insofar as possible.
Mr Retalic questioned why police had obviously thought it prudent to keep the video camera going in case something happened whilst Mr Ivanyi was in the vehicle, they would not continue with that good practice; put a new battery in and keep recording. No explanation was given as to why police could not record this belated comment or recapitulate a belated comment on video from an audio recording.
I note that Mr Ivanyi had made it perfectly plain that he did not wish to answer questions and that just before the video recorder battery went flat, Sergeant Howe made it clear to Mr Ivanyi that he did not intend to subject him to any further questioning. In those circumstances, there was no obligation to continue with the video recording. It cannot be said that in the circumstances it was ‘reasonably practical’ to make either an audio visual or audio record of the further statement. A written record was made as soon as practicable and there was no undue delay in that only sixteen minutes passed before the video recording was recommenced.
Clearly police did not comply with the requirements of s 74D (1)(c) (iii), (iv), (v) or (vi). At no time was Mr Ivanyi invited to interrupt to point out errors in the record. Sergeant Howe put to Mr Ivanyi the circumstances leading up to the time the statement was made and the statement itself, which Mr Ivanyi clearly denied.
The purpose of s 74D (1)(c) (iii), (iv), (v) and (vi) is to ensure that the subject of police interview understands his rights and has an opportunity to challenge the police record. There can be little doubt in this case that Mr Ivanyi challenged the record, but the way in which the information was put by Sergeant Howe, that is, as a narrative of the events, did not in my view provide any meaningful opportunity for Mr Ivanyi to assess what was being put to him and to voice his challenge. In not having invited Mr Ivanyi at any stage to point out errors or omissions in the record, I am left with some uncertainty as to what Mr Ivanyi’s position really was. I accept that Mr Ivanyi was not making things easy for Sergeant Howe, and there was no challenge on the voir dire to what Sergeant Howe alleged, but in my view, the circumstances required police to take particular care particularly in view of the fact Sergeant Bone did not hear the further statement despite his apparent proximity. In arriving at this decision, I make it clear that I am not suggesting I do not accept the evidence of Sergeant Howe as regards to what he heard. As was submitted by the prosecution, in view of there being no challenge to what Sergeant Howe alleged, the only inference to be drawn is that Sergeant Bone was not within hearing distance.
Interests of justice
In my view the interests of justice cannot in the circumstances here, outweigh the importance of police complying strictly with s 74D. In this case, while it is superficially easy to say that Mr Ivanyi was not prejudiced and had clearly rejected what he was alleged to have said, it appears to me that Sergeant Howe proceeded with the further interview without a clear appreciation of what was required. In the circumstances I am not satisfied the interests of justice require the admission.
I allow Mr Ivanyi’s application to exclude the statement from the evidence at trial.