R v Hastings No. Sccrm-02-277 - [2003] SASC 134

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] SASC 134
Decision Date: 8 May 2003

CaseChat Overview and Summary

In the case of R v Hastings, the appellant was convicted on four counts of participating in the sale of cannabis. The appeal against these convictions was based on two primary grounds: (1) the trial judge's decision to admit the record of an interview between the appellant and a police officer, Bray, despite non-compliance with statutory requirements, and (2) the trial judge's failure to direct the jury regarding the non-compliance with those statutory requirements. The statutory provisions in question are sections 74D and 74E of the Summary Offences Act 1953, which mandate the recording of interviews with suspects on video or audio tape, and require the trial judge to warn the jury if the statutory requirements are not met.

The appeal hinged on the interpretation and application of these statutory provisions. The first issue was whether the trial judge correctly exercised discretion in admitting the interview record despite the non-compliance with s 74D. The second issue was whether the trial judge failed to comply with s 74E by not drawing the jury's attention to the non-compliance and providing an appropriate warning.

The Court of Criminal Appeal found that the trial judge's decision to admit the interview record was justified under the strict régime established by s 74D, which generally mandates the exclusion of non-compliant evidence. The brief nature of the conversation at the warehouse, which merely arranged for a later recorded interview, was deemed inconsequential, and thus, the non-compliance was not deliberate or reckless. The Court also held that the failure to comply with s 74E did not necessitate setting aside the conviction, as the non-compliance was trivial and the trial judge would likely have deemed it trivial as well if properly considered. Therefore, the appeal was dismissed.

In conclusion, the Court upheld the trial judge's decisions regarding the admission of the interview record and the non-compliance warning, finding no grounds for setting aside the appellant's convictions.

Orders