R v Haydon (No 4) - [2005] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAYDON (No 4)
Reasons for Ruling of The Honourable Justice Sulan
21 January 2005
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS
Accused charged with two counts of murder and six counts of assisting offenders - application by accused to exclude evidence of conversations between the accused and police prior to his arrest on 21 May 1999 - application to exclude evidence obtained by police from, and observations by police at accused's house prior to his arrest - whether there had been a breach of s 74D of the Summary Offences Act 1953 - whether the accused voluntarily submitted himself to the interviews - whether evidence should be excluded on the grounds that the police did not caution the accused - whether evidence of conversation with the accused in breach of s 74D should be admitted in the interests of justice - application of s 74E of the Summary Offences Act - discussion of public policy and general unfairness discretion.
Summary Offences Act 1953 (SA), s 74D, s 74E, s 67(4)(a)(iii); Firearms Act 1977 (SA), s 32(3), referred to.
Question of Law Reserved (No 1) of 1998) 70 SASR 281, applied.
Bunning v Cross (1978) 141 CLR 54; R v Ireland (1971-1972) 126 CLR 321; R v King & Pitson (No 2) (1998) LSJS 111; R v Long & McDonnell (2002) LSJS 193, discussed.
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; Robinett v The Police (2000) 78 SASR 85; R v Buetti (1997) 70 SASR 370; R v Day (2002) 82 SASR 85; R v Dolan (1992) 58 SASR 501; R v Lobban (2000) 77 SASR 24; R v Swaffield (1998) 192 CLR 159; R v Zotti (2002) 82 SASR 554; Lai v The Queen (2003-2004) 180 FLR 190, considered.

R v HAYDON (No 4)
[2005] SASC 18

SULAN J The accused, Mark Ray Haydon (“Haydon”), is charged with two counts of murder and six counts of assisting offenders. The counts as they appear in order on the information are as follows:
Count 1: Assisting Offenders
It is alleged that Haydon assisted John Justin Bunting (“Bunting”) and Robert Wagner (“Wagner”) to escape apprehension or prosecution in respect of the murder of Michael James Gardiner.
Count 2: Assisting Offenders
It is alleged that Haydon assisted Bunting and Wagner to escape apprehension or prosecution in respect of the murder of Barry Wayne Lane.
Count 3: Assisting Offenders
It is alleged that Haydon assisted Bunting and Wagner to escape apprehension or prosecution in respect of the murder of Gavin Allan Porter.
Count 4: Murder
It is alleged that, together with Bunting and Wagner and James Spyridon Vlassakis (“Vlassakis”), Haydon murdered Troy William Youde.
Count 5: Assisting Offenders
It is alleged that Haydon assisted Bunting, Wagner and Vlassakis to escape apprehension or prosecution in respect of the murder of Frederick Robert Brooks.
Count 6: Assisting Offenders
It is alleged that Haydon assisted Bunting, Wagner and Vlassakis to escape apprehension or prosecution in respect of the murder of Gary O’Dwyer.
Count 7: Murder
It is alleged that Haydon, together with Bunting and Wagner, murdered Elizabeth Haydon.
Count 8: Assisting Offenders
It is alleged that Haydon assisted Bunting, Wagner and Vlassakis to escape apprehension or prosecution in respect of the murder of David Terence Johnson.
Haydon seeks the exclusion of all conversations between himself and the police prior to his arrest on 21 May 1999, and the exclusion of “all real evidence obtained by police from, and observations made by the police at, 4 Blackham Crescent, Smithfield Plains (“Blackham”), prior to his arrest on 21 May 1999”. At the time of his arrest and at other relevant times, Haydon was residing at Blackham.
I heard evidence from a number of police witnesses. I made rulings and indicated that I would give reasons later.
The applications
In November 1998, Haydon was living at Blackham with his wife, Elizabeth Haydon, who is the victim of murder alleged in count 7. Also living in a shed at the back of the premises was Jodie Elliott (“Elliott”), otherwise known as Gail Sinclair, who was Elizabeth Haydon’s sister.
On or about 21 November 1998, Elizabeth Haydon disappeared. On 25 November 1998, she was reported missing by her brother, Garion Sinclair (“Sinclair”), who had been looking after the Mrs Haydon’s children the previous weekend. It was alleged that she had been missing since about 22 November 1998.
Elizabeth CIB was assigned the task of investigating the missing persons report. Detective Constables Stone and Cocks (“Stone” and “Cocks”) attended Blackham at about 10.50 p.m. and spoke to Haydon and Elliott. They then attended at the Elizabeth Police Station and, at the invitation of Stone, Haydon wrote out his account of the circumstances surrounding the disappearance of his wife. Haydon seeks the exclusion of evidence of conversations at Blackham and at the Elizabeth Police Station. He also seeks the exclusion of his handwritten statement.
On 30 November 1998, police attended at Blackham where Stone and Cocks conducted a search for firearms. During that search, they sighted a purse which belonged to Elizabeth Haydon. The accused seeks exclusion of evidence relating to the search of the premises, and to the sighting of Elizabeth Haydon’s purse.
On 1 December 1998, Haydon attended the Elizabeth Police Station and spoke to Stone. A conversation relating to firearms was video recorded. After that recorded conversation, Haydon spoke to Stone about Elizabeth Haydon’s purse. Police then attended at Blackham where they searched for ammunition. Stone detected a smell in a pit which was located in a shed at the rear of the premises, not being the shed in which Elliott slept. The Crown do not intend to lead the video recorded conversation. The accused seeks exclusion of evidence of the conversations which were not recorded and of evidence of the search and of the smell.
On 16 December 1998, Detectives Stone and Hilliard (“Hilliard”) attended Blackham and spoke to Haydon. Exclusion of the evidence of the conversation is sought.
On 18 December 1998, a number of police officers, including officers from the Physical Evidence Section, attended at Blackham and searched the house and shed and conducted luminol testing for the presence of blood. Haydon seeks the exclusion of evidence relating to that search, and to observations made by officers.
On 8 January 1999, Stone and Detective Sergeant McCoy (“McCoy”) attended at Blackham. A search was conducted of the shed. There was also a conversation on that occasion. Haydon seeks exclusion of the evidence relating to the conversations, the search and any observations.
On 11 January 1999, a number of police officers attended at Blackham. The shed containing the pit was searched. Haydon seeks exclusion of evidence of that search.
On 13 January 1999, Stone and McCoy attended at Blackham and spoke to Haydon. Evidence of that conversation is sought to be excluded.
Background
The accused was arrested on 21 May 1999 after police discovered six barrels in a bank vault at Snowtown. The barrels contained bodies and body parts of eight people. Included in one of the barrels was the body of Elizabeth Haydon. Also arrested were Bunting and Wagner. Vlassakis was arrested some days later. On 8 September 2003, Bunting was convicted by a jury of eleven counts of murder, and Wagner was convicted of seven. At the commencement of his trial, Wagner had pleaded guilty to three counts of murder. The murders of which they were convicted included Michael James Gardiner, Barry Wayne Lane, Gavin Allan Porter, Troy William Youde, Frederick Robert Brooks, Gary O’Dwyer, Elizabeth Haydon and David Terence Johnson.
Haydon had been jointly charged with Bunting and Wagner. Prior to the jury being empanelled, Martin J stayed the trial in respect of all charges of murder alleged against Haydon, other than the murders of Clinton Trezise, Troy Youde and Elizabeth Haydon, which he ordered to be separately tried. The Bunting and Wagner trial commenced. Subsequently, the Director of Public Prosecutions (“Director”) filed an information charging Haydon with the offences I have set out.
Vlassakis had been charged with five counts of murder jointly with Bunting, Wagner and Haydon. During the committal proceedings he agreed to plead guilty to four counts of murder and to give evidence at the trials of his co-accused. Vlassakis’ offer to plead to four of the five counts of murder was accepted by the Director. He pleaded guilty in the Supreme Court to four counts of murder and was sentenced to life imprisonment with a non-parole period of twenty six years. He gave evidence in the trial of Bunting and Wagner, and is due to give evidence in Haydon’s trial.
At the commencement of the trial on 4 July 2004, the accused made an application that the counts of murder be heard separately, and that they also be heard separately from the counts of assisting offenders. I determined that all counts should be heard together. After that ruling, this application proceeded.
The officer who was assigned the investigation into Elizabeth Haydon’s disappearance was Stone. During the course of the investigation he worked with other officers, including Hilliard, Cocks and McCoy. The officer in charge of the squad who was assigned the task of investigating the disappearance of Elizabeth Haydon was Detective Sergeant Lawton (“Lawton”).
At the time of the disappearance of Elizabeth Haydon, Detective Sergeant Patterson (“Patterson”), who was then a member of the Major Crime Investigation Section, had been conducting an investigation into the disappearance of Barry Lane and Thomas Trevilyan. During the course of his investigation, he became aware of the Elizabeth Haydon investigation. The Barry Lane investigation involved investigating the conduct of Wagner and later Bunting. Their names were also common to the Elizabeth Haydon investigation. Eventually, Stone and McCoy were seconded to the Major Crime Investigation Task Force, and all investigations were brought under the umbrella of the Major Crime Section. At the commencement of inquiries, the investigations were kept separate. Officers from the Elizabeth CIB, Major Crime Section and Physical Evidence Section all gave evidence on the voir dire. No evidence was called on behalf of the accused.
In November 1998, Stone was a detective constable stationed at Elizabeth CIB. On 26 November 1998, he was assigned a missing persons inquiry into the disappearance of Elizabeth Haydon.
Elizabeth Haydon had been reported as a missing person by her brother, Sinclair at 3.00 p.m. on 25 November 1998. He reported that he was “in fear of his sister’s welfare”. The report was made to the Missing Persons section. A missing persons log was commenced. On 25 November 1998, Sinclair reported that he last saw Elizabeth Haydon at 10.00 p.m. on Friday, 20 November 1998, when she and the accused dropped their children off at his home. The children were to be picked up next day.
Sinclair reported that Haydon had collected the children on Sunday, 22 November 1998. The children returned to the Sinclair’s home on Monday, 23 November 1998. Sinclair told the police that Haydon had arrived at his home on Monday afternoon, 23 November, and told him that Elizabeth Haydon had come home drunk and that she had left with a boyfriend. The children had told him that when they returned home with Haydon, they had not seen their mother. When police made inquiries of relatives and friends of Elizabeth Haydon, they were told that she does not drink. They were also told that she makes contact with her mother every day. Police ascertained that her mobile phone was not answering and messages had been left unanswered. The uniformed officer, who had received the missing person’s report and who had commenced the inquiries had spoken to Haydon who said he did not know of his wife’s whereabouts. He had told the police that she may be with another male. He said that he had not seen any other male to verify that assumption.
Haydon was living at Blackham. The police had information that Elliott may have been having an affair with Haydon. Sinclair informed police that Elizabeth Haydon was not a drinker. He said it was out of character for Elizabeth Haydon to go off without informing him or her mother. There was information that Elizabeth Haydon had walked out of previous relationships when there were children of those relationships, but that had occurred many years before. As the initial inquiries did not solve Elizabeth Haydon’s disappearance, the investigation was referred to Elizabeth CIB.
The procedure adopted by police is that when a missing persons inquiry was referred to the police at Elizabeth Branch, it was initially considered by the uniform branch, but once it became evident that it was not a straightforward inquiry, it was referred to the Elizabeth CIB. Lawton’s team took over the investigation of this inquiry and Lawton referred it to Stone.
Stone said that when he received the file, it was his first missing persons investigation. He was uncertain how to go about it. He spoke to Lawton. A memo from Lawton, dated 26 November 1998, to Stone stated:
“I have met with Detective Chief Inspector Symons and Senior Inspector McGee re this. It has been decided that we (CIB) will take it over. As a matter of urgency could we contact relatives etc. If she doesn’t turn up in a day or two this will have to be geared up considerably …”
Stone said that when he spoke to Lawton, he was advised to make some quick inquiries, and then to file the matter. He formed the impression from Lawton that the file was of low priority. Lawton said that whenever he received a missing persons inquiry, he generally gave it to the most junior member of the team because the inquiries required a considerable amount of statement gathering. He said that he wrote the note because he was aware that Elizabeth Haydon had been missing for some days and if she could not be located within a couple of days, that would make investigations more difficult because of the need to obtain information before it goes cold.
He denied telling Stone that it was a matter of low priority. Stone had been assigned a number of other investigations. I conclude that Stone might have been under the impression that Lawton regarded the matter as of low priority. I accept that Lawton regarded the investigation as one that needed to be stepped up if it could not be resolved within a day or two. In any event, Stone did not regard the investigation as low priority, and he commenced inquiries that night. He was working with Cocks. Even though Lawton’s and Stone’s recollection of the importance of the inquiry differed, I draw no adverse conclusions from that, as the witnesses were recalling events some five years ago. The memo makes it clear that Lawton regarded the inquiries as important. He was aware that if they did not advance matters, there was potential for the investigation to escalate from a missing persons inquiry to a criminal murder investigation. Stone may well have had the impression, after speaking to Lawton, that the investigation was not urgent and only required some superficial inquiries, and it could then be forgotten. However, he did not act in accordance with that impression, which suggests that his recollection now is not entirely accurate.
Stone spoke to Sinclair and ascertained that Elizabeth Haydon had not been seen by her children since the previous Friday night, 20 November 1998. Sinclair said that Haydon had told him on Monday, 23 November 1998, that Elizabeth Haydon had taken money from his father’s bank account. Haydon took the children home on the Sunday evening, and they returned on the following Monday.
26 November 1998 – The Statements at Elizabeth Police Station
Armed with this information, Stone and Cocks attended at Haydon’s premises at Blackham at about 10.50 p.m. on 26 November 1998. They spoke to both Haydon and Elliott, who then came to the Elizabeth Police Station. Haydon and Elliott drove in Haydon’s car.
Prior to going to the Elizabeth Police Station, there had been a conversation at Blackham. Stone said that Elliott was the principal speaker. He was of the impression that Elliott demonstrated some animosity toward Elizabeth Haydon. Haydon seemed to be somewhat passive and indifferent.
At the Elizabeth Police Station, Stone requested that Haydon write a statement about the circumstances of Elizabeth Haydon’s disappearance. Haydon co-operated and wrote a statement. In that statement, he stated that on the day of their marriage break-up, which was the day upon which Elizabeth Haydon disappeared, she was at the house, together with Bunting and Elliott. Wagner arrived during the afternoon. At approximately 4.45 p.m. Elliott asked him to take her to Reynella. They left at about 5.00 p.m. They were away for some hours. When they were returning, he telephoned on two occasions to tell those at home that he and Elliott were on the way home. On the first occasion, he was unable to get through to the house. On the second occasion, Bunting told him that his wife had locked herself in their bedroom. Haydon stated that when he and Elliott arrived at Blackham at about 10.30 p.m., Bunting told him that Elizabeth Haydon had made a pass at him and, when he refused her offer, she became upset and went into the bedroom. Haydon stated that he went into the bedroom and his wife accused him of sleeping with his sister-in-law. She accused him of being lazy and good for nothing. He then left the bedroom. Bunting and Elliott went out to get something to eat. Whilst they were away, his wife came out of the bedroom and again accused him of being unfaithful. She then said she was leaving him, and would ring her boyfriend to pick her up. She left the house. He stated that he went to bed at about 2.00 a.m. Elizabeth Haydon returned at about 4.00 a.m. She was drunk, and she passed out on the bed. He stated that he got up about 10.30 a.m. the following morning and left his wife in bed alone. He told Bunting and Elliott that Elizabeth Haydon had returned. Bunting and Elliott went out at about 11.30 a.m. He spoke to his wife and asked her who she had been with, and all she would tell him was that she had been with someone he did not know. She then told him she was going out again. She told him to go to visit his father at a nursing home. When he returned at about 4.00 p.m., she was gone and he has not seen her since.
Stone had requested Haydon to handwrite his statement. Stone said that the reason he wanted Haydon to handwrite a statement was that he had been to a detective training course about eighteen months before and had heard about a technique called the SCAN technique. This was a technique that had been developed to analyse statements and test the likelihood of whether the statement maker was truthful. The analysis was more effective if the person had hand-written their statement. Stone said that he did not tell Haydon that one of the purposes of obtaining the hand-written statement was to submit it for SCAN analysis. He also wanted to perform the same test in respect of Elliott’s statement, but she is unable to write, so the police conducted an interview which was videotaped.
Defence submissions
Mr Lyons, on behalf of Haydon, sought exclusion of the evidence of the conversation at Blackham and the subsequent conversations and the hand-written statement made by Haydon at the Elizabeth Police Station. His primary submission was that there had been a failure by the investigating officer, Stone, to record the interview in accordance with the requirements of s 74D of the Summary Offences Act 1953 and that the evidence was, therefore, inadmissible. He submitted that, having failed to comply with the requirements of s 74D at Blackham, any subsequent interviews were also inadmissible.

“Section 74D(1) provides:
“Obligation to record interviews with suspects
74D. (1) An investigating officer who suspects, or has reasonable grounds to suspect, a person (“the suspect”) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:
(a)     if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;
(b)     if it is not reasonably practicable to record the interview on videotape but it is reasonably practicable to record the interview on audiotape, an audiotape recording of the interview must be made;
(c)     if it is neither reasonably practicable to record the interview on videotape nor reasonably practicable to record the interview on audiotape –
(i)a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and
(ii)as soon as practicable after the interview, the record must be read aloud to the suspect and the reading must be recorded on videotape; and
(iii)when the videotape recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and
(iv)if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and
(v)at the end of the reading, but while the videotape recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and
(vi)    if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the error or omission asserted by the suspect in an addendum to the record of interview.”
Counsel for Haydon submitted that the hand-written statement made by Haydon should be excluded because there had been a failure to record the conversations leading up to the making of the hand-written statement. It was submitted that the statement was part of the one interview, and that the making of it should have been video taped. Interview is defined as including a series of conversations.
In order for s 74D to apply, an investigating officer must suspect, or have reasonable grounds to suspect the accused of having committed an indictable offence.
Mr Lyons submitted that the necessary state of mind of the police officer to satisfy the requirement of s 74D falls short of belief, and simply requires an opinion, even a slight opinion, without sufficient evidence. In the alternative, he submitted that the hand-written statement should be excluded in the exercise of the court’s discretion, because Stone had failed to advise Haydon that a purpose for obtaining the hand-written statement was to submit it to analysis by the SCAN technique. He submitted that it was improper conduct on the part of the police to request a person to submit a hand-written statement without advising the person of the purpose for asking that person to hand write it. He submitted that that impropriety enlivened the discretion of the court and, as a matter of public policy, the evidence should be excluded. He further submitted that the Crown should exercise the overriding discretion to exclude the evidence on the basis that the accused could not receive a fair trial if the evidence was admitted. He submitted that there had been a failure to caution Haydon.
Submissions by the Crown
Ms McDonald for the Crown submitted that s 74D has no application to the conversations at Blackham, or to the subsequent conversation at the Elizabeth Police Station. She submitted that the provisions of s 74D only apply when an investigating officer suspects, or has reasonable grounds to suspect, a person of having committed an indictable offence, and that officer proposes to interview the person. She submitted that, as at 26 November 1998, neither Stone nor Cocks suspected, nor were there reasonable grounds to suspect, that an indictable offence had been committed, let alone that Haydon may have committed it. She submitted that the evidence established that, at that time, the police were in a relatively early stage of a missing persons investigation, and there was no basis upon which they could conclude that Elizabeth Haydon was dead. Nor was there any evidence of another indictable offence. She submitted that s 74D had no application.
As to the exercise of the discretion, Ms McDonald submitted that there was no basis upon which the court should exclude either the evidence of the conversations at Blackham, or the evidence relating to the hand-written statement. She contended that the police were at a very early stage of an inquiry into a missing person, that there was a paucity of evidence, and the police had scant information from which it was not possible to draw any conclusions.
As to the failure to inform Haydon that it was Stone’s intention to undertake a SCAN analysis, she submitted that the accused had not established a sufficient basis to satisfy the court that the statement should be excluded. Counsel submitted that the prosecution did not intend to lead any evidence of the results of the SCAN analysis. In her submission, there was no evidence that Haydon would not have given a statement if he had been told that the statement was to be submitted for a SCAN analysis. She submitted that, in any event, there is no unfairness to Haydon, as the statement is not intended to be led for the purpose of establishing the results of the SCAN analysis. She argued that, insofar as the public policy discretion is relevant, although it might be said that Stone acted with some impropriety in failing to advise Haydon of the use that was to be made of the statement, the Crown does not intend to rely on evidence of the SCAN analysis.
As to the suggestion that Haydon should have been cautioned, Ms McDonald submitted that the police were at an early stage of their investigation. The inquiries of Haydon and Elliott were of a general nature. There was no suggestion that they were suspects, nor was there any reason to conclude that it was unfair to conduct the interviews without cautioning them. The statement that Haydon provided voluntarily in no way implicated him in any offence. There was no pressure upon him to make a statement. There is no basis to conclude that he would have refused to answer questions if he had been cautioned.
Section 74D
In order for the section to apply, it requires the investigating officer to have reached a state of mind where, although he cannot prove that the person has committed an indictable offence, he has a view, or actual apprehension, that the person has committed an indictable offence. Alternatively, if an objective view of the information available to the officer is such that there are reasonable grounds to form such a view, then there is a requirement to comply with s 74D.
In R v Zotti,[1] the court considered s 82(1) of the Proceeds of Crime Act 1986 (Cth), which provides that it is an offence if a person disposes of money suspected of being the proceeds of crime. Gray J said:
“The concept of suspicion has been the subject of considerable judicial comment. It has been said to mean or to refer to “a state of conjecture”, “surmise where proof is lacking”, “suspect but cannot prove”, “a slight opinion but without sufficient evidence”, “a positive feeling of actual apprehension” and “something short of belief”.”[2]
[1] (2002) 82 SASR 554
[2] Ibid at 573 [130]
In Queensland Bacon Pty Ltd v Rees,[3] Kitto J, in considering whether a payee had reason to suspect that the payor, a debtor, was unable to pay its debts as they became due, said:
“A suspicion that something exists is more than a mere idea wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”, as Chambers Dictionary expresses it.”[4]
[3] (1966) 115 CLR 266
[4] Ibid at 303 referred to by Gray J in Zotti (supra) at 574
In Lai v The Queen,[5] the Court of Criminal Appeal in the Northern Territory considered the application of s 142 of the Police Administration Act (NT), which is in similar, but not identical terms to s 74D. The Court adopted the approach of Kearney J in R v Grimley (1994) 121 FLR 236. He said:
“ … I do not consider that to suspect the person he is questioning, in terms of s 142(1), the police officer must at that time believe that he is probably guilty of the offence. Suspicion in general lies somewhere between mere speculation that the person committed the offence, without any factual foundation – a mere idle wondering – and a belief based on reasonable grounds that he committed it. It is a state of mind which arises from a consideration of known facts less than those required for a belief, resulting in an apprehension that the person might possibly have committed the offence. It requires a degree of conviction which is beyond mere speculation, and based upon some factual foundation.”[6]
[5] (2003) 180 FLR 190
[6] Ibid at 194 [21]
I agree with the approach of Kearney J that if a police officer apprehends that the person might possibly have committed an indictable offence the section has application.
The information available to Stone on 26 November 1998 was that Elizabeth Haydon was missing in circumstances where it was possible that she may have left after having had a disagreement with Haydon. Stone had information from Sinclair which was limited to a concern for his missing sister. The fact that Elizabeth Haydon had not contacted her mother and that she was not answering her telephone were matters that raised some concerns about her welfare, but were inconclusive. Stone also had Haydon’s version of his wife’s departure. There was a suggestion from Sinclair that Haydon had told conflicting stories about his wife, but there was insufficient evidence to support a suspicion that she had been murdered.
At that time, any conclusion that Elizabeth Haydon had been murdered, or that Haydon was somehow involved, could have been only based on speculation. I accept Stone’s evidence that he had not formed a suspicion that Haydon or, for that matter, any person had committed an indictable offence. There is no basis to conclude that Stone had reasonable grounds to suspect Haydon of committing an indictable offence. Section 74D did not apply.
The public policy discretion
The public policy discretion was considered in the Question of Law Reserved (No. 1 of 1998).[7] Doyle CJ, with whom Cox and Matheson JJ agreed, said:
[7] 70 SASR 281
“The nature and scope of the [public policy] discretion has been considered in some detail by the High Court in recent times. I refer to Ridgeway v The Queen (1995) 184 CLR 19, R v Swaffield (1998) 72 ALJR 339 and Nicholas v The Queen ((1998) 72 ALJR 456.
There is no doubt that, in the exercise of that discretion, a court can exclude evidence other than confessional evidence.
It is equally clear, in my opinion, that the discretion permits the exclusion of evidence only if that evidence was obtained by unlawful or improper conduct. The rationale underlying the exercise of the discretion to exclude evidence, if the discretion is so exercised, is that considerations of public policy may require the court to prevent the prosecution from gaining “curial advantage” by using improperly or unlawfully obtained evidence, and may require the court not to appear to approve of the illegality or impropriety by which the evidence was obtained, by allowing the use of the evidence as part of the prosecution case. When the court exercises the discretion, it declines to allow the prosecution to make use of evidence obtained through illegality or impropriety, because to do so would be to allow it to benefit by its own wrongdoing, and would give the appearance of approving of the relevant illegality or impropriety. Of course, as the cases make quite clear, the court has to put into the scales as well the importance of securing the conviction of those who commit criminal offences.
Authority for what I have said is to be found in the manner in which the discretion is described, and the explanation given for its existence and exercise. I refer in particular to Bunning v Cross (at 74-75, 77-78) per Stephen and Aickin JJ; Ridgeway v The Queen (at 30-32) per Mason CJ, Deane and Dawson JJ, (at 48-49) Brennan J, (at 56) Toohey J, (at 74) per Gaudron J and (at 82-83) per McHugh J; Nicholas v The Queen (at 32-35) per Brennan CJ.
If the evidence in question was not obtained by unlawful or improper means, this discretion does not arise. It does not arise simply because the discretion is directed to preventing the curial advantage that would be gained from the use of the evidence, and from avoiding the appearance of approval by allowing the use of the evidence.
The discretion is a broad one. It is founded upon the need to preserve the integrity of the administration of justice and the need to protect the processes of the courts of justice: see Ridgeway (at 30-32) per Mason CJ, Deane and Dawson JJ. An object of the exercise of the discretion is to discourage illegal or improper conduct by the law enforcement authorities: see Ridgeway (at 32); R v Swaffield (at 22) per Brennan CJ.
But the foundation of the discretion, and its object, do not give the courts a roving commission to search for illegality or impropriety by those responsible for the enforcement of the law. The discretion does not give a power to exclude evidence whenever there is some association between that evidence and illegal or improper conduct, or whenever an attempt is made to bolster prosecution evidence by resort to illegal or improper conduct. To exercise the discretion in that fashion would be to use the exclusion of evidence as a means of punishing wrongdoing by those responsible for the enforcement of the law. That is not the responsibility of the courts. Or, to be more precise, the exclusion of evidence is not the means by which wrongdoing is to be punished by the courts. As the majority said in Ridgeway (at 37) with reference to improper conduct by law enforcement officers in the course of investigating criminal activity:
“A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of an offence with which the accused is charged.”
In other words, the discretion arises when the improper or illegal conduct has procured the commission of an offence or has enabled the prosecution to obtain the relevant evidence.
As I have already said, it is when the illegality or impropriety is the means by which the evidence is procured that the discretion arises for consideration. It arises then because allowing the use of the evidence, obtained in this fashion, may appear to condone illegal or improper conduct, and may compromise the court’s commitment to the upholding of the law.”[8]
[8] Ibid at 287-288
In R v Lobban,[9] Martin J, with whom Doyle CJ and Bleby J concurred, agreed that Question of Law Reserved (No. 1 of 1998), correctly stated the law. He concluded that the basis for the existence of the discretion was not to undertake the role of supervising or punishing law enforcement authorities who act illegally or improperly but, rather, to ensure that the administration of criminal justice is not brought into disrepute through the use of the courts to enable law enforcement agencies to benefit from illegal or improper conduct. As a prerequisite to the exercise of the discretion, it is necessary to establish that there was unlawful, improper or unfair conduct on the part of law enforcement officers in connection with the obtaining of the evidence which is intended to be used. The use to be made of the evidence is a factor to be taken into account.
[9] (2000) 77 SASR 24
In Robinett v Police,[10] Bleby J considered the decisions of Lobban and Question of Law Reserved (No 1 of 1998). He observed that the discretion does not apply to exclude evidence automatically whenever there is some association between the evidence and illegal or improper conduct, but it must have some additional element that justifies the court expressing its disapproval of the conduct, not merely by verbal expression of disapproval but by imposing a sanction against the conduct by declaring the evidence inadmissible. The unfairness the court is considering is whether the impropriety is such that the authority has taken advantage of its illegal conduct in gaining the evidence relevant to the commission of the offence.
[10] (2000) 78 SASR 85 [61]
The obtaining of the written statement from the accused did not involve any illegality. However, in not advising Haydon that he intended to submit the written statement to a SCAN examination, Stone acted unfairly. If it is intended by the police to request a person who may not be a suspect, but whose conduct is the subject of inquiry to submit the information he supplies for further expert analysis, then the person is entitled to know that that is the intention of the investigating officer. In failing to inform Haydon of his purpose, I conclude that Stone did not act fairly or with propriety. It does not follow that the evidence should be excluded. The court is required to balance the public need to bring to conviction those who commit criminal offences against the public interest in the protection of the individual from unlawful and unfair treatment; see: R v Ireland (1971-1972) 126 CLR 321 at 334. Fairness to the accused is but only one factor to be considered. Society’s right to insist that law enforcement agencies respect the law and the rights of the individual is the basis upon which the public policy discretion is founded; see Bunning v Cross (1978) 141 CLR 54 at 74-75. The extent of the illegal or improper conduct is a factor to which the court should have regard. The seriousness of the charge and the circumstances of the conduct are other factors. The use to be made of the evidence can be important in the exercise of the discretion.
The Crown does not seek to lead any evidence of the results of the SCAN examination. There is no evidence that Haydon would not have provided the statement in any event. In considering whether to exercise my discretion to exclude the evidence, I have had regard to the conduct of Stone. He conceded that he did not tell Haydon about the SCAN technique because he feared that Haydon would not provide a statement if he knew the purpose for obtaining it. That conduct was improper. However, the extent of the impropriety and the fact that there is no attempt by the prosecution to lead any evidence of the SCAN tests are factors to which I have had regard. In my view, the impropriety is not such that satisfies me, on the balancing of the respective interests, to exclude the evidence. I do not consider that the evidence was obtained at a price which is unacceptable.
The general unfairness discretion
In R v Lobban (supra) Martin J considered whether the general unfairness discretion which exists in the case of confessions and which focuses upon considerations of unfairness to the accused has been extended to other forms of evidence. That is, whether, in receiving evidence, it would be unfair to the accused in the sense that the trial would be unfair and it should, therefore, be excluded; see R v Swaffield (1998) 192 CLR 159. He concluded:
“Bearing in mind the statements in the authorities to which I have referred, in my opinion a discretion exists to exclude non-confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair. The existence of the discretion is not dependent upon the conduct of law enforcement authorities. An accused person is entitled to a fair trial and it is the duty of the court to attempt to ensure that the trial is fair.”[11]
[11] (2000) 77 SASR 24 at 45 [77]

He said:
“The approach of the courts has been and should be one with a very strong predisposition to the view that, questions of fact and credibility being for the jury and the jury being an institution in whose capacity and integrity confidence is reposed by the courts, evidence which is probative should go to the jury despite its infirmities, accompanied by the trial judge’s directions concerning the considerations, both general and particular, affecting its reliability, including of course in an appropriate case the matter of corroboration. Trial judges must be at pains to ensure that the discretion to exclude admissible evidence on the ground of unfairness is not used (contrary to Doney) to withdraw a case from the jury on the footing that any conviction would be unsafe or unsatisfactory.”[12]
[12] Ibid at 47 [85]
It was submitted that, had Haydon been aware that his hand-written statement may be submitted to further scientific analysis, he may not have given the statement, and it would be unfair if the statement were admitted. I do not accept the submission. There was no evidence before me to support such a proposition. Furthermore, the evidence of Stone and Cocks was that Haydon was prepared to co-operate and that he came to the Elizabeth Police Station late at night in order to make a statement about the circumstances of the disappearance of Elizabeth Haydon. At that stage, police were simply making inquiries.
In my view, the statement has probative value. It is an important item of evidence for the jury to consider. I do not consider that it is unfair to the accused in the sense of him not receiving a fair trial if the evidence is admitted, and I refuse to exclude it.
Caution
A further complaint about the police conduct of the investigation was that Haydon should have been cautioned prior to the police seeking to obtain a statement from him.
In R v Dolan,[13] the court considered the admissibility of a statement made by the appellant who was a suspect and who was interrogated by the police who failed to caution him. King J said:
“The cautioning of a suspect that he is not obliged to answer questions, is the offspring of the rule rendering inadmissible in evidence confessions which have not been made voluntarily. It is also related to the discretion which a trial judge has to exclude evidence, including confessional evidence, if the admission of that evidence would be unfair to the accused. The caution tends to negative any suggestion of involuntariness or unfairness. The omission of the caution in circumstances in which it ought to be given, is not decisive as to the voluntariness of the confession nor of the fairness of admitting evidence of it. The judge must decide those issues by taking all relevant circumstances into account including the omission to administer the caution.
The questioning of a suspect who is under arrest or who is otherwise in custody, tends naturally to the conclusion that he is not acting in the exercise of free choice in answering the questions. In such circumstances the caution is virtually an indispensable condition of the admissibility of the answers. The need for the caution is almost as compelling where, although the arrest has not actually been made, the police officer has decided to make the arrest. There are many cases which have insisted on the need for caution in these circumstances. I refer only to R v Williams (1976) 14 SASR 1 especially at 4-5 where Wells J cites a passage from the judgment of Cullen CJ in R v Currie (1912) 29 WN (NSW) 201.”[14]
In R v Bueti,[15] Doyle CJ said:
“The fact that an interrogation has reached the accusatory stage is an indicator that fairness will require that a caution be given before further questions be asked, if the answers are to be used at trial. But there may be other circumstances that make it unfair to use answers obtained without the administration of a caution. As I said in R v Murphy (at 414), the requirements of fairness are not to be turned into fixed categories, and the decided cases should not be taken as stating exhaustively what may be required if fairness is to be observed. While it is possible unfairness in the use of the answers at trial that enlivens the discretion, the fairness of the manner in which the police dealt with the suspect becomes relevant.”[16]
[13] (1992) 58 SASR 501
[14] Ibid at 504-505
[15] (1997) 70 SASR 370
[16] Ibid at 377-378
At the time that Haydon attended at the Elizabeth Police Station, he was not a suspect. Police were simply asking him to assist with their inquiries. Although there may be circumstances when someone who is not a suspect should be cautioned because a failure to do so would result in unfairness, this is not such a case.
It is an important factor in considering the exercise of the discretion what effect the failure to administer the caution has had on the accused. Haydon attended at the police of his own free will. He was prepared to discuss the disappearance of his wife. He was not pressured into providing the statement. He was not a suspect. The police were conducting general inquiries at the time. I reject the submission that the oral and written statements of Haydon should be excluded on the grounds that there was a failure to caution him.
Events after the 26 November 1998 interviews
After Haydon and Elliott had left the Elizabeth Police Station, Stone searched the computer system. He was able to obtain an address for Bunting at Murray Bridge. He requested the police to visit Bunting at Murray Bridge. Bunting contacted Stone at about 1.15 a.m. on 27 November 1998 and told Stone that he had last spoken to Elizabeth Haydon by telephone on Monday, 26 November 1998. Stone telephoned Elizabeth Haydon’s mobile phone and left a message.
On 28 November 1998, Stone spoke to Elizabeth Haydon’s mother who still had not heard from her. He ascertained that Elizabeth Haydon had walked out of a previous relationship, but had not done anything like that since 1987. Sharon Ball, a friend of Elizabeth Haydon, told Stone that she had last seen Elizabeth Haydon on 20 November 1998. Stone spoke to Sinclair who told Stone that Haydon had told him that Elizabeth Haydon had stormed out of the house on Saturday and that she returned at about 4 a.m. Sunday morning. Haydon said that she was drunk and had slept for a couple of hours. She then left the house. Sinclair told Stone that Haydon gave a different version on the following Monday in which he said there had been an argument because Elizabeth Haydon thought Elliott was making sexual advances to Haydon. This caused her to leave. She returned at about 4 a.m. drunk, then packed some clothes and left with a boyfriend. According to Sinclair, Haydon allegedly gave a third version in which he said that she had left after an argument and returned at 4 a.m. In the morning Haydon had gone off to visit his father, leaving Elizabeth Haydon asleep. When he returned, she had gone.
Stone gave evidence that this information heightened his suspicions, because he was concerned that Haydon had told different versions. Stone also spoke to Christine Speck, Elizabeth Haydon’s sister, who confirmed that Elizabeth Haydon kept in regular contact with her mother. Stone’s evidence was that the information he was obtaining heightened his suspicion that Elizabeth Haydon had been murdered. He said that at that stage he did not have a suspect, but he could not rule out Haydon. He regarded Haydon as a person of interest, which he defined as a person who may end up being a suspect in the inquiry. He said that his suspicions about Haydon tended to vacillate during the inquiry.
30 November 1998 – the search
In the course of his inquiries, Stone received information that Haydon had four guns and ammunition at his home. On 30 November 1998, he and Cocks attended at Blackham. Elliott was there, and told the police that Haydon was not home. When Stone sought to enter the premises, she asked to see a warrant. Cocks was about to produce his general search warrant when Stone informed him that that was unnecessary as he, Stone, was exercising powers under s 32(3) of the Firearms Act 1977. That section provides that a member of the police force may search premises in which the member suspects, on reasonable grounds, that there is an unregistered firearm on the premises.
A search was conducted and, in the main bedroom, Stone and Cocks located four firearms. Whilst searching the bedroom, police looked through some clothing. A purse was located. Stone examined the contents of the purse, which turned out to belong to Elizabeth Haydon. The purse was not seized, because Stone considered it was not an item that could be seized under the Firearms Act. There were documents relating to firearms in the name of Lawrence. At the time, neither police officer was aware that Haydon had, in the past, used the name Lawrence.
Defence submission
Counsel for Haydon objected to evidence relating to the discovery of the purse. He submitted that when the police officers conducted a search which went beyond a search for ammunition and guns, the search became illegal. He submitted that the evidence disclosed that the police deliberately exceeded their authority, and that they always intended to conduct a much wider search. He submitted that, insofar as they exceeded their powers under the Firearms Act, they should be treated as trespassers and the evidence of discovery of the purse should be excluded.
Crown submission
Counsel for the Crown submitted that the search for firearms was a legal search. Ms McDonald submitted that there was no dispute that the police had been provided with information which justified the search. She further submitted that the evidence supported the conclusion that neither Stone nor Cocks intended to perform a general search, as they did not conduct a general search of the premises. She further submitted that Haydon had co-operated up to that point in time, and there was no reason for the police to think that he would not permit them to search the premises. If they wanted to conduct a general search, they could have waited to ask him.
Ruling
The evidence of Stone and Cocks differed in respect of the purse. Stone said he opened the purse to look for a firearms licence, whereas Cocks said that he looked because of the general investigation into Elizabeth Haydon’s disappearance. Once the police had examined the purse, they did not seize it. The following day they took the purse after Haydon had voluntarily given it to them.
I accept the evidence of Stone and Cocks, that the purpose for going to the house was to search for weapons, and not to conduct a wider search. If they had a wider purpose in mind, then the general search warrant powers could have been exercised. Section 67(4)(a)(iii) of the Summary Offences Act 1953 authorises the holder of a general search warrant to enter and search premises if he has reasonable cause to suspect that there is anything that may afford evidence as to the commission of an offence. Cocks could have exercised his powers under his general search warrant if the purpose of the police was to conduct a general search. I conclude that the police officers went to the premises for a legitimate purpose.
I am satisfied that the police officers acted within the power provided to them by the Firearms Act. The police officers were entitled to look for any evidence which might disclose the owner of the firearms or which may provide information about the registration of the firearms. Even if the search which resulted in the finding of the purse went beyond what was authorised by the Firearms Act, given that Haydon later consented to the police taking possession of the purse, and given that I have concluded that the police officers did not enter the premises for the purposes of conducting a general search, I would not exclude the evidence. Any unlawful conduct was relatively minor; see: R v Long & McDonnell (2002) LSJS 193 [30-31].
1 December 1998
On 1 December 1998, Haydon voluntarily came to the Elizabeth Police Station where a video interview was conducted. That interview centred around the finding of the four firearms at the premises. Prior to commencing that formal interview, Stone cautioned Haydon. Haydon told Stone that the firearms were registered under the name Mark Ray Lawrence, and that he had changed his name to Haydon in 1995. He brought with him two bolts from the rifles. He told Stone that there may be ammunition in the shed. Cocks and Stone then attended at Blackham and searched the shed, with the consent of Haydon. Stone observed that there was a pit in the shed. He went down into the pit. He said that the area was very cluttered and it smelled as if something had died down there. Stone spoke to Haydon about the purse and asked if he could take the purse and documents that had been in it. Haydon handed over the purse and documents. Stone’s evidence about the purse being handed over is unchallenged. Cocks had a vague recollection of the events. I accept Stone’s evidence that the purse was handed over by Haydon.
Counsel submitted that I should exclude the evidence of the seizure of the purse, and exclude evidence of the contents of the purse. He submitted that because the earlier search, when the purse was discovered was illegal, any evidence obtained which flowed from that search should be excluded.
I do not agree. For reasons I have earlier given, I do not consider that the police officers acted illegally or improperly. Haydon was asked about the purse on 1 December 1998, and he agreed to hand it to police. The police conduct in requesting him to co-operate and to let them have the purse was proper. No basis has been established to require me to exclude the evidence.
It was submitted that I should exclude the evidence of Stone’s observations when he entered the pit. It was submitted that Stone should have advised Haydon of the smell that he observed at the time that he entered the pit. Counsel submitted that a failure to advise Haydon deprived him of the opportunity of obtaining an independent person who could give evidence about the smell. I reject that submission.
There is no requirement upon investigators to advise potential suspects of their observations. On many occasions, it might not be in the interests of the police investigating an offence to inform others of their observations until the inquiry has proceeded further. In my view, there is no basis for excluding that evidence.
16 December 1998
On 16 December 1998, Stone, with Hilliard, attended at Blackham. Stone was about to go on holidays and he wanted to introduce Hilliard to Haydon and Elliott. Haydon directed the police to the bedroom. Stone observed clothes in garbage bags. Haydon said that he had bagged up Elizabeth Haydon’s clothes. Stone also saw clothes in a walk-in wardrobe. Haydon told Stone that the only things Elizabeth Haydon had taken were her personal papers. Stone asked Haydon if he had a relationship with Elliott. Haydon denied any such relationship. The police also spoke to Elliott. They did not go into the shed.
On that day, there was a meeting with Patterson and other members of the Major Crime Taskforce. Hilliard gave evidence that she and Stone went to Blackham before the meeting. Patterson told the meeting that Major Crime were looking into the disappearance of Barry Lane, and that they had received information about bodies being cut up and put in plastic bags. During the meeting he also mentioned Clinton Trezise, and a possible link to a third person who was not named. He told the meeting that the common link in all of the inquiries was Bunting and Wagner. Stone told the meeting about his inquiries and about the smell in the pit. It was agreed that Stone would continue his missing persons inquiry. It was suggested by Patterson that they consider conducting luminol tests at Blackham. Luminol tests can give a presumptive test for the presence of blood.
Patterson gave evidence that he was investigating the disappearance of Barry Lane, and that Wagner was central to his investigations because there was evidence that Wagner had been accessing Barry Lane’s account. He said that on 21 November 1998 he became aware that the names of Bunting and Wagner had cropped up in the Elizabeth Haydon inquiries, and that is why he met with officers of Elizabeth CIB on 16 December 1998. He said it was an informal meeting. He said that Haydon was not the focus of any investigation by the Major Crime Taskforce. It was decided to keep the investigations separate. Stone said that the information provided by Patterson raised his suspicions about the disappearance of Elizabeth Haydon, but he still did not focus on any individual as being involved.
Counsel for Haydon objected to the evidence of the police attendance at Blackham on 16 December. He objected to the Crown leading evidence of conversations at the premises. He submitted that there had been a failure to comply with s 74D of the Summary Offences Act.
The police were still at a very early stage of their inquiries and, although there may have been a number of loose ends which, at that stage, the police were not able to tie together, I accept Stone’s evidence that Haydon was not a suspect. There was still doubt as to whether Elizabeth Haydon was dead or alive. There were a number of people that Stone was focussing upon but none, in my view, were suspects. The visit to Haydon’s home was with Haydon’s consent. I reject the submission that s 74D applied, and that the conversations should have been recorded. I further reject the submission that, in the exercise of my discretion, I should exclude the evidence of the conversations.
Events after 16 December 1998
On 17 December 1998 Hilliard took over the investigations. At that time, there were a number of suspicious events of which the police were aware. Police had information that Wagner was accessing Barry Lane’s account. There was some information that there had been bodies in bags, but police did not have any evidence of murders.
On 18 December 1998, Hilliard attended at Blackham with a number of officers from the Physical Evidence Section. She spoke to Haydon and explained that the police wished to conduct luminol testing. She said he was co‑operative and agreed to the police conducting the examination. Crime scene investigators entered the pit. Hilliard noticed a musty decaying smell. She described it like “something had gone off in a fridge”. She also seized some soiled clothing.
Counsel for Haydon submitted that the evidence should be excluded. He advanced a similar argument to that which had been advanced in respect of Stone’s evidence about the smell.
I consider that the evidence of Hilliard’s observations is admissible. The entry into the premises was with the consent of Haydon. There was no requirement to inform Haydon of Hilliard’s observations.
Further investigations beyond 18 December 1998
Hilliard continued investigations. On 6 January 1999, Stone returned to work. The police had received information that there was a secret panel in the shed. On 8 January 1999 Stone and McCoy attended at the premises at Blackham. Elliott and Haydon were there. Haydon consented to the police officers entering the pit. Stone said the smell was still there. He observed an opened bottle of methylated spirits or turpentine. No secret passage or area was discovered.
The defence submit that the evidence relating to the smell in the pit should be excluded. For reasons previously indicated, I reject that submission.
11 January 1999 and thereafter
On 11 January 1999 police attended at the premises again to look for the secret passage. They had been given a plan. McCoy, Lawton, Hilliard, Stone and McLean attended. The shed was padlocked. Lawton executed his general search warrant and the police cut the padlock and entered the pit. No secret passage was located. The smell was still there. The police subsequently replaced the padlock.

It was submitted that evidence of the smell should be excluded. For the reasons previously given, I refuse that application.
On 12 January 1999, Stone received information that the next-door neighbour’s daughter had seen a four-wheel drive being loaded up with black garbage bags at about the time that Elizabeth Haydon was reported missing. The person involved was Haydon. In my view, that information was of such impact that it should have raised a reasonable suspicion in the mind of the investigating officers that Haydon may have been involved in the murder of Elizabeth Haydon.
13 January 1999
On 13 January 1999 Stone and McCoy were conducting a door knock in Blackham Crescent. Whilst doing that, they saw Haydon and spoke to him about the four-wheel drive. No caution was administered, and the conversation was not recorded.
Objection was taken to this evidence.
I consider that by that stage, Stone had sufficient information upon which there were reasonable grounds to suspect that Haydon may have committed an indictable offence, that is, the murder of Elizabeth Haydon. There was a failure to comply with s 74D in that the conversation was not recorded. The failure to comply with s 74D rendered the conversation inadmissible.
Counsel for the Crown conceded that there had been a failure to comply with s 74D but urged me to admit the evidence pursuant to s 74E, which provides that if the court is satisfied that the interests of justice require the admission of the evidence, despite the non-compliance by the police officer, the court can admit the evidence.
Section 74E
In R v Day,[17] Perry J observed that if the Crown seeks to invoke s 74E(1)(b), the court must be satisfied that the interests of justice require the admission of the evidence. The factors to be considered in determining whether it is in the interests of justice to admit the evidence include whether the failure to comply with the requirements of s 74D were deliberate or reckless, whether the conduct of the interview is disputed, and the circumstances which caused the failure to comply.
[17] (2002) 82 SASR 85
The commencing point is that if there has been a failure to comply with s 74D, then exclusion is the norm and admission of the evidence is exceptional; see: R v King & Pitson (No 2)[18]. The failure to comply with s 74D is not to be regarded lightly and the admission of evidence obtained in contravention of the section is to be regarded as exceptional. Police officers should be aware of the requirements of s 74D and should know that failure to comply with them deprives a suspect of a fundamental protection provided by the legislature. If those requirements are ignored, the defendant is entitled to protection from such failure.
[18] (1998) 198 LSJS 111 at 119
Stone and McCoy chose to speak to Haydon. It would not have been difficult for them at least to have tape-record the conversation. They made no record of it. By that time, police had information about bodies in garbage bags. They had information that a person matching Haydon’s description was loading garbage bags into a four-wheel drive. Haydon had been spoken to on a number of occasions. I am not satisfied that it is in the interests of justice to admit the evidence. The evidence is excluded.