R v Hastings No. Sccrm-02-277

R v HASTINGS
[2003] SASC 134
Court of Criminal Appeal: Duggan, Debelle and Williams JJ

DUGGAN J I agree that this appeal should be dismissed for the reasons given by Debelle J.
DEBELLE J The appellant was convicted on four counts of taking part in the sale of cannabis. He appeals against all four convictions contending they should be set aside.
The prosecution case was based to a large extent on a record of an interview which a police officer named Bray had had with the appellant. The police failed to comply with s 74D of the Summary Offences Act 1953. After a voir dire hearing, the trial judge admitted the record of the interview. When directing the jury at the conclusion of the trial, the trial judge failed to draw the jury’s attention to the failure to comply with s 74D and to give an appropriate warning as required by s 74E of the Summary Offences Act. The appellant appeals on two grounds. They are:
(1)that the trial judge erred in finding that it was in the interests of justice to admit the record of interview; and
(2)that the trial judge erred in failing to direct the jury in the manner required by s 74E.
I set out the facts in greater detail.
The Requirements of s 74D
Section 74D prescribes the requirements to be followed by a police officer who wishes to interview persons suspected of having committed an indictable offence. For present purposes, it is relevant to note only that s 74D requires the interview to be recorded on video tape if it is reasonably practicable to do so and, if not, to record the interview on audio tape: s 74D(1)(a) and (b). If it is not reasonably practicable to record the interview on either video tape or audio tape, a written record of the interview must be made at the time of the interview or as soon after the interview as is reasonably practicable. The written record must be read aloud to the suspect and the suspect is to be given a proper opportunity to correct it. Both the reading and the corrections are to be recorded on video tape: s 74D(1)(c).
A Failure to Comply
The circumstances leading to the interview were as follows. On 4 September 1999 police officers went to the appellant’s residence at Osborne where they found a number of cannabis plants growing in sheds in the back yard of the premises. The police then accompanied the appellant to a warehouse on Old Port Road at Alberton. The raid on the appellant’s premises was part of a large police operation code named “Operation Cantor”. One of the senior officers co-ordinating the raid was Bray. Operation Cantor involved investigations into the conduct of a number of persons who were believed to be involved in transporting cannabis from South Australia to New South Wales where it was sold. On 3 September police officers raided about 35 to 40 premises and arrested and charged about 20 persons. On 4 September police raided other premises, including the premises of the appellant.
A number of police officers were assigned to the task of searching the appellant’s premises. They included Detective Senior Sergeant Kelso, who was in charge of the team, and Detective Sergeant Gordge. After searching the appellant’s residence at Osborne, Kelso and Gordge accompanied the appellant to the warehouse at Alberton. While they were at the warehouse, Bray arrived. As one of the officers in charge of Operation Cantor, Bray had a detailed understanding of those believed to be involved in the distribution network for the cannabis. The appellant was believed to be one of those involved in that network. Bray went to the premises at Alberton in his role as one of the supervising officers. Bray had been informed by Kelso that the investigation was nearing its end and he wanted to contact the investigating team so that he was aware of the overall progress of the operation.
When Bray arrived at the warehouse at Alberton, the appellant was in the company of Kelso after which there was a conversation between Bray and the appellant which gives rise to the issues in this appeal. Both the substance of the conversation and the circumstances in which it occurred were disputed. However, it is common ground that the following events occurred.
●There was a conversation between Bray and the appellant. In part of that conversation Bray said that he wished to speak to the appellant later after Gordge had completed his enquiries relating to the search of both the appellant’s residence at Osborne and the warehouse at Alberton.
●The appellant was taken to the Port Adelaide Police Station and interviewed by Gordge.
●After that interview and after he had been charged with the offence of producing cannabis and possessing cannabis for sale on 4 September 1999, the appellant was granted police bail.
●After being granted bail, the appellant was then interviewed by Bray, the interview being recorded on video tape.
●After the interview, the appellant was charged with four counts of taking part in the sale of cannabis.
Bray did not make any note of the conversation at the warehouse. He made handwritten notes later in the day after the recorded interview.
The appellant had been charged on information with six counts, namely, the four counts of taking part in the sale of cannabis and the counts of producing cannabis and possessing cannabis for sale. The trial judge ordered a separate trial of the two counts of producing cannabis and possessing cannabis for sale.
The appellant challenged the admissibility of both the conversation between himself and Bray and the recorded interview. The prosecution applied to have the conversation and interview admitted, notwithstanding the failure to comply with s 74D. The prosecution conceded the following failures to comply with s 74D.
(1)The failure to record on audio tape the conversation between Bray and the appellant at the warehouse at Alberton.
(2)The failure by Bray to make a written record of the interview as soon as practicable after the interview at Alberton.
(3)A failure to read the written record aloud to the appellant in order to give him an opportunity to correct it and to record the reading and corrections on video tape.
The prosecution also conceded that the conversation at the warehouse was one of a series of conversations leading to the recorded interview.
A Discretion to Admit
Section 74E(1) invests the court with a discretion to admit evidence of an interview notwithstanding a failure to comply with s 74D. It provides:
“       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.”
The trial judge admitted the interview after a voir dire hearing. Bray, Gordge, Kelso and the appellant gave evidence at the voir dire hearing. As already mentioned, there was dispute both as to the content of the conversation at the warehouse at Alberton and the circumstances in which it occurred. The trial judge accepted Bray’s evidence as to both the content and circumstances of the conversation. He found that Bray went to the warehouse without intending to speak to the appellant and that he informed Kelso that he wanted to speak to the appellant after the investigation was complete and the appellant had been released on bail. That conversation took place in the presence of the appellant who was then with Kelso and was heard by the appellant. The following exchange occurred.
The appellant said,      “What about?”
Bray said,“I will leave it until after they have spoken to you Ron and you have been bailed. That way this matter they are talking to you about can be finalised. Are you happy with that?”
The appellant said,               “Yeah”.
Bray said,“Are you prepared to talk to me then?”
The appellant said,      “Yeah, alright”.
The appellant’s Christian name is “Ronald”. Bray was informed some hours later that the appellant had been charged and bailed in respect of the investigation conducted by Kelso and Gordge. Bray then conducted the interview with the appellant and it was recorded on video tape. The trial judge found that, when Bray made his handwritten notes of the earlier conversation at Alberton, the details of the conversation were then fresh in his memory. He also accepted the evidence of Kelso that at no stage did Bray and the appellant have a conversation out of his hearing.
The finding that Bray did not speak to the appellant out of Kelso’s hearing related to the appellant’s evidence of the conversation. He said that, when Bray arrived, he had been with Kelso in an office in the warehouse. He said that Bray and Kelso had had a brief conversation after which Bray asked him to go into another part of the warehouse. There, he and Bray had a conversation at which no other person was present. In the course of that conversation, Bray induced the appellant to co-operate by saying that police in New South Wales had photographs of the appellant and wanted to extradite him to New South Wales. According to the appellant, Bray had said that the law in South Australia was more lenient than that in New South Wales. The appellant said that the only reason he answered Bray’s questions was because he wanted to give Bray a reason to charge him in South Australia so that he would not be extradited to New South Wales.
In his reasons for admitting the recorded interview, the trial judge said that s 74D imposed a strict régime so that the exclusion of evidence was the normal result for non-compliance unless the court had reason to admit the evidence. He was clearly referring to the observations of this Court in R v King & Pitson(No 2) (1998) 199 LSJS 111. He then quoted the following extract from the reasons of Perry J in R v Day (2002) 82 SASR 85 at 89:
“In determining whether it is in the interests of justice to admit evidence obtained in circumstances where there has been a non-compliance with the Division, the answer to the questions whether non-compliance is deliberate, or the product of a reckless disregard of the statutory provisions, or is inadvertent or otherwise excusable, will be relevant. Other factors will also be relevant: for example, the cogency of the evidence, whether the content of relevant statements is disputed, and in the case of a series of conversations, whether or not only part of the series is infected by the non-compliance.”
The trial judge then found that the breach was inadvertent and the content of the conversation was uncontroversial. He said:
“I conclude that although non-compliance with section 74D did occur, it occurred because Bray did not consider that the conversation at the warehouse, which was instigated by the accused overhearing Bray’s conversation with Kelso, was a conversation to which section 74D applied. Although Bray was wrong, I consider that given the circumstances in which the conversation took place, given that it was a very short conversation and the only matter discussed was that there would be a later conversation and that no matter of substance was discussed, and given that the non-compliance was not a deliberate non-compliance in the sense that the officer deliberately or recklessly failed to comply with his obligations under section 74D, that there is good reason to conclude that it is in the interests of justice to permit evidence of the lengthy video taped conversation.”
He concluded that it was in the interests of justice to admit the evidence of the conversation and of the recorded interview.
Was the Recorded Interview Properly Admitted?
Mr Boucaut, who appeared for the appellant, contended that it was not in the interests of justice to admit the evidence of the recorded conversation. He submitted that the finding by the trial judge that “no matter of substance was discussed” in the brief conversation at the warehouse was wrong. He submitted that the conversation dealt with a matter of substance because it was the conversation in which he initiated the recorded interview, that is to say, to use Mr Boucaut’s words, “it got the whole ball rolling”. The fact that Bray later made notes about the conversation was itself, he said, an indication that Bray believed the conversation to be significant. Mr Boucaut did not challenge the findings of fact made by the trial judge in any other respect. In particular, he did not challenge the findings as to the content and circumstances of this conversation. He submitted that the strict régime established by s 74D required that the recorded interview not be admitted.
The reasons of the trial judge disclose that he was only too mindful of the strictness of the régime established by s 74D. He was aware that exclusion is to be the norm and admission of evidence exceptional: R v King & Pitson (No 2) (supra) per Cox J at 119. He was aware also that, when determining whether it was in the interests of justice to admit evidence, a relevant factor is whether the contents of the non-complying statement are disputed: R v Day (2002) 82 SASR 85 at 89 per Perry J. The reasons why the régime must be strict are spelled out in McKinney v The Queen (1991) 171 CLR 468 at 475 – 476. Mr Boucaut did not point to any flaw in the reasoning of the trial judge. He immediately disputed the judge’s conclusion admitting the record of interview.
I do not think there is any fault in the reasoning of the trial judge. This was a short conversation doing no more than arranging a later interview. It is unnecessary to determine whether the arranging of a later interview constitutes a matter of substance. The important fact is that it was a brief conversation doing no more than arranging an interview. The judge carefully examined the evidence. He had regard to all relevant factors. It has not been demonstrated that the trial judge has erred in his reasoning. In my view, there is no cause to interfere with the judge’s conclusion to admit the conversation at the warehouse and the recorded interview.
The Definition of “Interview”
In the course of the argument on this appeal, counsel for the respondent sought to resile from the concessions made before the trial judge that the conversation at the warehouse was part of a series of conversations which included the recorded interview. I put to one side whether he is entitled now to resile from that concession. In my view, the concession was properly made.
The definition of “interview” includes both a conversation and a series of conversations: s 74C. The purpose of giving “interview” a wide meaning is to ensure that all relevant conversations between police officers and suspects are properly recorded by one means or another. One of the purposes of the requirement to record conversations is to prevent the making of any threat or inducement which might later result in a recorded confession. Another purpose is to prevent disputes in criminal trials as to the voluntariness of a confession: McKinney v The Queen per Brennan J at 478 – 479. The submissions of counsel for the respondent seek to restrict the intent of this legislative scheme in an inappropriate way.
The Failure to Warn
When a trial judge admits a conversation or interview which does not comply with s 74D, the judge is required by s 74E(2) to draw the attention of the jury to the non-compliance and to give an appropriate warning. Section 74E(2) provides:
“ (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)given an appropriate warning in view of the non-compliance,
unless the court is of the opinion that the non-compliance was trivial.”
The trial judge failed to adhere to either of those obligations. The judge had not ruled that the non-compliance with s 74D was trivial. Neither counsel for the prosecution nor counsel for the defence reminded the judge of the terms of s 74E. The appellant contends that his conviction should be set aside by reason of the failure to comply with s 74E(2).
The findings of fact made by the trial judge, findings which were not challenged in argument, demonstrate that the failure in this case to comply with s 74D was trivial. The conversation was extremely brief and constituted no more than arranging a time at which the recorded interview would be made. There can be little doubt that, had the trial judge considered s 74E(2), he would also have concluded that the non-compliance with s 74D was trivial. If a Court of Criminal Appeal itself concludes that the non-compliance is trivial, the failure to give the jury the warnings required by s 74E(2) does not in my mind require the conviction to be set aside and a new trial ordered. I do not think that Parliament intended that, if the non-compliance with s 74D was in fact trivial and the trial judge has failed to comply with s 74E(2), the conviction should be set aside. At all times the non-compliance was trivial and effect must be given to that conclusion.
For all of these reasons, I would dismiss this appeal.
WILLIAMS J I agree.

[2003] SASC 134

8 May 2003