R v Johnson (No 2) No. Sccrm-03-95

R v JOHNSON (No 2)
[2004] SASC 11

SULAN J: The accused, Shane John Johnson, is charged with murder. The particulars of the offence are that between 24 May 2002 and 28 May 2002 at Mansfield Park or another place, he murdered Michelle Frances Ryan. Prior to the trial commencing, Mr Vadasz, counsel for the accused, filed three notices pursuant to Rule 9 of the Supreme Court Criminal Rules 1992. The trial commenced on 4 November 2003. A jury was not empanelled on that day. Evidence was called by both the prosecution and the defence in respect of issues raised pursuant to the notices. During the course of the voir dire hearing, a further Rule 9 notice was filed and further evidence was called in respect of that notice.
The voir dire hearing proceeded over a period of seven days until Wednesday, 12 November 2003, when I delivered rulings in respect of each of the notices. A jury was empanelled and the trial continued. I indicated that I would deliver reasons in due course.
Background
The accused is alleged to have murdered his de-facto partner, Michelle Frances Ryan, some time between 24 May 2002 and 28 May 2002. Prior to the death of Ms Ryan, she and the accused had been living in a de-facto relationship at 11 Warren Street, Angle Park. On 15 June 2002, the accused told the police that he had not seen the deceased for about two or three weeks and that, as far as he was aware, he thought she had gone to Alice Springs with a person named Rossi and a person named Nikki.
The police investigation had commenced on 14 June 2002 when the partly decomposed body of a female, subsequently identified as Michelle Frances Ryan, was found in a dry riverbed on the Gawler River at Virginia. Police attended the location in the early hours of the evening, where they observed the body of the deceased in a dry creek bed, partially covered with pieces of bark. It was not possible to observe the location of the body from Port Wakefield Road, where it crosses the Gawler River, as the body was some 90 metres away from the bridge.
It was clear to both the police and Dr James, the pathologist who attended, that the body had been there for some time. The body was partly decomposed and areas of the body were covered in maggots. The prosecution case is that forensic tests support the contention that the deceased’s body had been left in the riverbed some time during the evening of 25 May 2002, or in the early hours of 26 May 2002. The police ascertained the identity of the deceased and also obtained information that prior to her death, the deceased and the accused had been living together at 11 Warren Street, Angle Park.
The deceased was removed to the mortuary at the Royal Adelaide Hospital, where a post-mortem was conducted. Dr James concluded that the cause of death was due to multiple facial and skull fractures. Dr James concluded that there had been massive trauma to the head, centring on the facial bones, which he observed were in 47 pieces. He was of the opinion that multiple blows would need to have been inflicted to create this degree of shattering.
A taskforce of the Major Crime Investigation Branch was set up under the command of Detective Senior Sergeant Gerald Feltus to investigate the death of the deceased. Detective Senior Constable John Fry was assigned as the investigating officer. He worked in company with Detective Senior Constable Peter Martin. The taskforce met at 8.45 a.m. on 15 June 2002. Detective Fry gave evidence that they were given information about the deceased, her identity, and the circumstances in which her body had been found at the Gawler River.
At about 10 a.m, Detectives Feltus, Fry and Martin attended at the scene at the Gawler River. They returned to the Major Crime office for a further briefing, which occurred at about 12.10 p.m. on Saturday, 15 June 2002. They were informed that the deceased had a criminal record and, at the time of her death, was awaiting a court hearing in respect of a charge of assault and larceny. Police were informed that her de-facto partner was the accused, and that his current address was 11 Warren Street, Angle Park. The police had information about other possible associates of the deceased. Detective Fry gave evidence that he suspected that 11 Warren Street, Angle Park, may have been the scene where the crime had been committed. He gave evidence that he had that suspicion because that was the last known address of the deceased.
Attendance at 11 Warren Street, Angle Park
At about 2.10 p.m. on the afternoon of 15 June 2002, Detectives Fry and Martin attended the premises at 11 Warren Street, Angle Park. They drove past the premises and observed a person sitting on a chair at the front. The detectives said that the person must have been the accused. They waited for Detectives Rowney and O’Donoghue, who were members of the taskforce, to arrive. They arrived shortly after Detectives Fry and Martin and the four police officers then attended at the house at 11 Warren Street, Angle Park. At the time both Detectives Fry and Rowney were in possession of general search warrants. Detective Fry gave evidence that at about 2.15 p.m. he knocked on the front door and received no response. Detective Martin went to the back of the premises and observed wet footmarks on the cement floor. When the police officers received no response, Detective Fry entered the premises through an unlocked window at the front. Prior to entering the premises he called out, “Police” and indicated that he would enter the premises. He received no response. Having entered the premises, he opened the door to the other police officers who also entered. Detective Fry called out and the accused walked from a bedroom. Detective Fry identified himself to the accused.
Detective Fry said that there was a brief conversation in which he established the accused’s identity. He then went to the police vehicle, where he obtained a hand-held cassette recorder and returned to the house where he had a further short conversation with the accused.
Detective Fry said that he had no suspicion at that time regarding the accused’s involvement in the murder of the deceased. The initial conversation with the accused was that they were making inquiries regarding Michelle Ryan and they asked the accused whether he had seen her. The accused responded, “Not for a couple of weeks”. He told the police he thought she had gone to Alice Springs with a person named Rossi and a person named Nikki. He said that he had last seen her about three weeks before. The accused said his neighbour had seen her about four days ago.
Detective Fry said that he tape-recorded the further conversation because it was the best way to obtain an accurate record, and he was aware that it was going to be a long and involved conversation. He wanted to ensure that it was recorded correctly. A further conversation was conducted later that day at the Adelaide Police Station. It was recorded by videotape. Detective Fry said that he video-taped the interview for the same reason as he audio-taped the conversation at the house.
Detective Fry said, “As far as I was aware at that stage he was the de-facto of the accused, it was the last known address that she had been at and I thought he would be able to provide us with information regarding her movements, associates, and a background for us to commence the investigation.”
The conversation at the house commenced at 2.34 p.m. Detective Fry informed the accused that the police believed that Michelle Ryan was dead and that she had been murdered and that was the reason why they were asking questions about when he last saw her. Detective Fry said:
“Q.And whether anyone else has had any contact with her. At this stage I need to speak to you further about this. I’m gonna ask you further questions regarding the circumstances of which her body’s been found. Are you able to accompany us back to Angus Street Police Station where we can ask you some further questions on her movements and get some details from you - .”
The accused answered:
“Yeah, yeah -.”
The accused told the police that he was comfortable with doing that. He said the last occasion when he had seen Michelle Ryan was about three Saturday nights ago at about 10 p.m. He was asked:
“Q.And was she, anyone else present at that time.”
He answered:
“A.No, we just come home from being around at this bloke’s house and we just walked home here and then um there’s a note on the door saying ‘come home to bed’ from these people down the back over here and then she um - I said, ‘you’re always going around there every time – you know, we have a little bit of a scuffle or something, you’re always hanging around the corner there all the time.’ Ah she can … she jus[t] took off’ and I said ‘Listen, what about court? You, you nearly got caught before and I told the officer down there, you know, cos she didn’t report and then they turned around and um, um-, she just took.”
The accused was asked whether he would come back to the police station to conduct a video interview and he agreed. He was advised that he was not under arrest. He told the police that he had nothing to hide and that he loved the deceased. At about 2.39 p.m. the police accompanied the accused to the Adelaide Police Station to an interview room where a lengthy videotaped interview was conducted.
Detective Fry said that he made it clear to the accused that he was not under arrest and that he had no reason to suspect him at that point in time. Detective Fry said he told the accused that it was intended that the police would search his premises at 11 Warren Street, Angle Park.
When the police conveyed the accused to the police station, the accused sat in the rear of the vehicle alone. Detective Fry said that if a person is arrested, then one of the arresting officers always sits with the arrested person in the rear of a police vehicle.
Detective Martin confirmed the evidence of Detective Fry. He said that at the briefing, prior to attending the accused’s premises, he had information that the deceased’s last known address was 11 Warren Street, Angle Park, and that she had not been killed at Gawler River. He had information about various motor vehicles, including a green 1977 Toyota Corolla. He also had information about charges against the accused and deceased which were pending. He was asked, “What were you seeking to do in speaking to him (the accused) at that time?” He replied, “To identify the movements of Michelle Ryan and his association with her or identify other associates that may assist us in finding out what happened to her.” He said that the accused was willing to assist in finding what had happened to the deceased, that he was not under arrest or suspicion at that time, and that when he accompanied the police to the police station he was not regarded as a suspect, nor was he under any form of compulsion to co-operate or remain with the police.
Detective Senior Sergeant Feltus was the team leader in charge of the investigation. He gave evidence that he conducted the briefing on 15 June 2002. He placed information that the police were obtaining during the investigation on a whiteboard. He said that the reason that Detectives Fry and Martin were sent to the address at 11 Warren Street, Angle Park, was that the accused had been identified as the de-facto boyfriend/associate of the deceased. He said that the accused was a person that had to be interviewed as he was the only person at that point in time, that is, on the afternoon of 15 June 2002 that could give any information in relation to the deceased. Detective Feltus said that at the time that the police interviewed the accused, the police had no reason to have any suspicion as to who may have murdered Michelle Ryan. He said he was receiving regular updates from Detective Fry, but at no stage on that day did he contemplate that the accused would be arrested. He said his views changed after he had interviewed a witness by the name of Julie Bowie, on the afternoon of 17 June 2002.
Interview at Adelaide Police Station, 15 June 2002
The interview which was videotaped commenced at 3.17 p.m. and concluded at 6.45 p.m. During the course of the interview there was a break of approximately three-quarters of an hour when the accused left the building to have a cigarette in the company of Detective Martin. Detective Fry conducted some further inquiries during that time. At the conclusion of the interview the accused accompanied the police to various premises, being the premises of people who had been referred to during the interview. He pointed out those premises to the police. He was eventually driven back to his home. There was no record kept of any conversation which took place in the police vehicle after the police left the Adelaide Police Station. Upon the request of the police the accused handed a pair of shoes to them.
I viewed the videotaped record of interview. I was able to observe the accused responding to the questions put to him by both Detectives Fry and Martin. The accused answered questions and appeared to co-operate with the investigating officers throughout the interview.
24 June 2002
Detectives Fry and Martin attended at the accused’s home on 24 June 2002, for the purpose of returning the accused’s house key which he had given to Detective O’Donoghue on 15 June 2002. A conversation took place at the house between Detective Fry and the accused. The conversation was not recorded. At that stage, Detective Martin said that the accused was a suspect. No caution was administered. Detective Martin said that the reason that the accused was not cautioned, nor was the interview recorded, was that the police had gone to the premises for the sole purpose of returning the key, and it was the accused who engaged the police in conversation. Detective Fry said that his only intention at that time was to return the key. He said that he did not record the conversation on 24 June was because he was aware that there had been a listening device installed in the accused’s premises and that their conversation was being recorded in any event, and he did not want to alert the accused to that fact. Detective Fry also said that he did not have his tape-recorder in the police vehicle on the day.
15 July 2002
On 15 July 2002, police attended at the accused’s premises when he was arrested. He was taken to the Adelaide Police Station, where a short interview was conducted in which the accused indicated that he wished to telephone his lawyer and did not wish to answer further questions.
Objection to the admission of evidence of the record of interview of 15 June 2002
Paragraph 16 of the accused’s Rule 9 notice, dated 24 October 2003, seeks an order excluding evidence to be led before the jury of an interview between the accused and Detectives Fry and Martin. Particulars of the application are that the accused was not given the opportunity to exercise a right to silence, as would pertain to an arrested person or a person unless under de-facto arrest, and that the interview was obtained unlawfully.
In a further Rule 9 notice, dated 31 October 2003, the accused sought to add additional grounds to paragraph 16, namely, that the interview was obtained involuntarily and that there had been non-compliance with s 74D of the Summary Offences Act 1953.
In support of the application, Mr Vadasz, counsel for the accused, called Dr Jack White, a forensic psychologist. Dr White interviewed the accused on 6 November 2002 and again on 3 November 2003. He conducted a number of psychological tests on the accused. Dr White concluded that the accused was in the bottom two per cent of the IQ range of the population. His overall IQ was 66. Dr White said any IQ below 70 indicated that the accused would be placed in the mental retardation range. The accused has a very limited ability to read and write. Dr White concluded that the accused is a submissive person with high warmth and low dominance characteristics. He suggested that the accused may have been confused and not understood some of the questions that had been put to him by the police officers on 15 June 2002. He was also of the opinion that the accused might react and make verbal threats in his attempts to communicate his feelings, and that may be demonstrated by aggressive behaviour and aggressive responses. The accused did not give evidence.
Voluntariness
Mr Vadasz submitted that the record of interview on 15 June 2002 should be excluded on the ground that the accused did not voluntarily submit himself to the interview. He relied upon the evidence of Dr White, that the accused was a submissive character, and that he would not have understood the significance of the occasion. He submitted that, in those circumstances, the will of the accused had been overborne, and the record of interview should be excluded on the grounds that it had been involuntarily obtained.
A record of interview may not be admitted in evidence against an accused person in his trial unless it is shown to have been voluntarily made. In other words, the record of the interview must have been conducted with an accused person exercising free choice. If he is the subject of duress, intimidation or any undue pressure, then it will not be voluntary. If it is made in circumstances where the person does not understand his rights and is under some form of compulsion, then it will not be voluntary. See McDermott v The King (1948) 76 CLR 501 at 511.
The accused did not give evidence on the voir dire. He did not suggest that his will was in any way overborne by anything said or done by the police. Mr Vadasz relied upon the evidence of Dr White who said that the accused was easily dominated and was the type of character who is likely to submit to requests made by people in authority. Dr White also suggested the accused might have been confused in a number of the answers he gave to the police, as some of those answers were inconsistent. I was not impressed by Dr White’s evidence. I accept that the accused is of low intelligence. I do not accept that the accused was unable to comprehend questions put to him by Detectives Fry and Martin, or that he was confused. Dr White’s examples of instances when he considered the accused was confused and inconsistent in his answers is not supported when the answers are considered in context. Dr White conceded that what he interpreted as inconsistent responses in respect of a trip the accused and deceased took to Queensland may not demonstrate inconsistency, but more likely looseness of language.
I had the opportunity to observe the video recording of the accused answering questions over a period of hours. The accused appeared to comprehend the questions that were put to him. He was willing to co-operate with the police. I accept the evidence of Detectives Fry and Martin that the accused was at all times co-operative and agreed to come with them and to co-operate in an interview. I reject the contention that the accused was unable to understand. In my view, the accused understood the position and agreed to assist the police.
I consider that the Crown has discharged the onus of proof on the balance of probabilities that the accused made the statements to the police on 15 June 2002 voluntarily, and I reject the submission that the evidence should be rejected on the grounds of voluntariness.
Section 74D Summary Offences Act 1953
Mr Vadasz submitted that the investigating officer had failed to comply with s 74D of the Act. Section 74C and s 74D provide as follows:
“Interpretation
74C. In this Division (sections 74C to 74G)-
“interview” includes –
(a)a conversation; or
(b)part of a conversation; or
(c)a series of conversations;
“investigating officer” means –
(a)a member of the police force; or
(b)a person authorised under an Act to investigate offences and arrest suspected offenders.
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.
(2)    If the suspicion, or a reasonable ground for suspicion, arises during the course of an interview, the investigating officers’ 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 a videotape or audiotape recording 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;
(c)    a refusal of the interviewee to allow the interview to be recorded on videotape or audiotape;
(d)    any other relevant matter.
(4)    As soon as practicable after a videotape or an audiotape recording is made under this Division, the investigating officer must give the suspect a written statement of the suspect’s right –
(a)    if a videotape recording was made –
(i)to have the videotape played over to the suspect or the suspect’s legal adviser (or both); and
(ii)to obtain an audiotape recording of the sound track of the videotape; or
(b)    if an audiotape recording (but no videotape recording) of the interview was made – to obtain a copy of the audiotape.
(5)    Arrangements must be made, at the request of a suspect, for the playing of a videotape at a reasonable time and place to be nominated by an appropriate investigating officer.
(6)    A suspect must be provided, on request and on payment of the fee fixed by regulation, with –
(a)    an audiotape of the soundtrack of a videotape recording of an interview with the suspect under this Division; or
(b)    a copy of an audiotape recording of an interview with the suspect under this Division.”

It was conceded by Mr Henchliffe, for the Director of Public Prosecution, that in respect of the interview of 24 June 2002 the police had failed to comply with s 74D. He indicated that he did not intend to lead that conversation.
Mr Vadasz submitted that the investigating officer failed to comply with s 74D in respect of the interviews on 15 June 2002 at 11 Warren Street, Angle Park, and subsequently at the Adelaide Police Station. Mr Vadasz submitted that the conversations on 15 June 2002 were part of a series of conversations and, therefore, constituted an interview.
In R v Day[1], Perry J considered when a conversation may form part of a series of conversations, as defined in s 74C. He said:
“Whether or not more than one conversation will constitute a “series” for the purposes of that definition will depend upon the circumstances of the case. It would be inappropriate to attempt to define in advance what might constitute a series for this purpose.”[2]
[1] (2002) 82 SASR 85
[2] Ibid at 88
I agree with this conclusion. Some of the factors to which a court may have regard in determining whether a conversation forms part of a series include the subject matter of the conversations, whether the initial conversation is intended to be an introduction to the subsequent conversation or conversations, the time span between the conversations, and the purpose of the investigating officer when conducting each conversation. In R v Blayney & Blayney[3], Doyle CJ observed that it does not follow that successive conversations which are close in time and which involve the same people and same subject matter will necessarily be part of a series of conversations.[4] The circumstances in which separate conversations will form part of a series of conversations will vary from case to case, and there can be no absolute criteria which will determine this question.
[3] (2002) 220 LSJS 102
[4] Ibid at 108
In this case, the conversations at the house and at the Adelaide Police Station on 15 June 2002 were conducted for the purpose of obtaining information about the deceased and ascertaining her and the accused’s movements prior to her death. The subsequent conversation on 24 June 2002 was of an entirely different character. At that time, the accused was considered to be a suspect by the police. The conversation was not initiated by police, but occurred when Detectives Fry and Martin returned the accused’s house keys. It was not envisaged that there would be a conversation. The further conversation of 15 July 2002 occurred to inform the accused of his rights. The time lapse between the conversations are significant. The suspicion by the police of the accused’s involvement changed. I accept Detectives Feltus, Fry and Martin’s evidence that on 15 June 2002 the accused was not under suspicion. I do not consider that the conversations on 15 June 2002 formed part of a series of conversations which occurred later. It is accepted that in the 24 June 2002 conversation, Detective Fry failed to comply with the requirements of s 74D. That does not render the conversations of 15 June 2002 inadmissible.
In my view, the interview on 15 June 2002 was not part of a series of conversations connecting the interviews of 24 June 2002 and 15 July 2002. I consider that they were separate and distinct interviews.
Further, in respect of the interviews which took place on 15 June 2002, s 74D only applies if the investigating officer suspects or has reasonable grounds to suspect a person (the suspect) of having committed an indictable offence and, if the investigating officer proposes to interview that person, he must ensure compliance with sub-section (1) of s 74D.
The section contemplates that it is only necessary to comply with the requirements of s 74D if there is suspicion or reasonable grounds for suspicion. It is only necessary to comply with the requirements of the section once that state of mind has been reached by the investigating officer. Sub-section (2) provides that if an investigating officer has not reached the point of suspicion or he does not have reasonable grounds to suspect the person, the obligation to comply with sub-section (1) does not arise. The moment at which the investigating officer does arrive at a point where he has suspicion or reasonable grounds for suspicion then he must comply with the obligations required under sub-section (1).
It follows that in respect of the interviews on 15 June 2002, unless the investigating officer suspected or there were reasonable grounds to suspect the accused of having committed an indictable offence, there was no requirement to comply with the obligations of sub-section (1).
I accept the evidence of Detectives Fry and Martin, that on 15 June 2002 when they went to the accused’s premises they had no suspicion that the accused had committed any offence. At that stage they were inquiring about the death of the deceased and attempting to obtain as much information as possible about the circumstances of her disappearance and death. The police had no evidence which pointed to the accused. There were no reasonable grounds for them to suspect the accused. In my view, s 74D(1) did not apply to the interviews that were conducted on 15 June 2002. I reject Mr Vadasz’s submission.
Was the accused under arrest on 15 June 2002?
The discretion
Mr Vadasz submitted that after the police entered the accused’s house at 11 Warren Street, Angle Park, and confronted the accused, the accused was under arrest. Mr Vadasz relied upon the number of officers in attendance, the method of entry and the manner in which the accused was spoken to by Detective Fry. Detective Fry said to the accused:
“At this stage, I need to speak to you further about this. I’m gonna ask you further questions regarding the circumstances of which her body’s been found. Are you able to accompany us back to Angus [sp] Street Police Station where we can ask you some further questions on her movements and get some details from you –.”
Later Detective Fry said:
“At this point, like I said, I’d like you to come up where we can conduct our, a video interview with you and get these details down.”
The accused agreed and Detective Fry said:
“I advise you now you’re not under arrest.”
The accused responded that he had nothing to hide and that he loved the deceased.
Mr Vadasz submitted that the words used by Detective Fry, although professing to advise the accused he was not under arrest, when considered in the overall situation, would have conveyed to the accused that he had no choice but to accompany the police to the police station.
He submitted that the police should have given the accused his rights and should have cautioned him before embarking on the video interview at the police station.
In The Queen v Conley[5], King CJ considered when a person may be regarded as having been apprehended. He said:
“A person is apprehended for the purpose of ss. 75 and 78(1) when he is deprived of his liberty by a police officer irrespective of whether formal words of arrest are used. Frequently a police officer invites or requests a suspect to accompany him to a police station or to some other place for the purpose of pursuing police enquiries and the suspect voluntarily complies. Such an invitation or request does not amount to deprivation of liberty (The Queen v King, per King J. at pp. 128-129), even though the police officer would have made an arrest if the suspect had not complied and even though the suspect believed that that would be the result of non-compliance. If, however, the circumstances are such that the words uttered, although in form an invitation or request, would in the circumstances convey to a reasonable person that he had no genuine choice as to whether to accompany the police officer, it becomes incumbent upon the police officer to make it clear that the suspect is not under arrest and is free to refuse to accompany him, and, in the absence of such an intimation, the apparent invitation or request may constitute an apprehension.”[6]
[5] (1982) 30 SASR 226
[6] Ibid at 239-240
In R v Dolan[7], King CJ observed:
“It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions. This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audiovisual tape. Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.”[8]
[7] (1992) 58 SASR 501
[8] Ibid at 505
In R v Szach[9], King CJ said:
“If the investigation proceeds successfully, it will reach a stage at which the police are satisfied about the nature of the crime which has been committed and believe that it was committed by a particular person. It then becomes necessary to interrogate that person, with a view to laying the foundation for charging him with the crime unless in the course of the interrogation he is able to exonerate himself. I think that at the stage of commencing such an interrogation, the dictates of fairness differ from those applying to the earlier stage of the investigation. The focus of the investigation has changed. The investigation has passed beyond the stage of merely putting questions with a view to eliciting useful information. It has hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself. The requirements of fairness change in accordance with the changed situation. While the police are merely seeking information, fairness involves no more than that the questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires, and that his answers be faithfully reported. When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his rights to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position.”[10]
[9] (1980) 23 SASR 504
[10] Ibid at 583
Whether a caution should be administered depends upon the circumstances of each case. If a person is under arrest, or if the police intend to arrest a suspect, it is clear that in most cases the failure to administer a caution will render those conversations as having been unfairly obtained. There may also be instances in which a police officer is undecided and does not suspect the person interviewed, but where fairness dictates that a caution be given (see R v Bueti (1997) 70 SASR 370).
The accused did not give evidence. I accept the evidence of Detectives Fry and Martin, that the accused was at all times free to bring the conversation to an end and leave if he so desired. I am satisfied that the accused understood that he was not required to answer questions or to accompany the police. He was not in any respect detained. Further, the circumstances of the interview at his house and the subsequent interview at the police station were such that any failure to caution the accused did not render the interview unfair. There was no requirement to caution the accused. I decline to exercise my discretion to exclude the evidence of the conversations on 15 June 2002.
Mr Vadasz submitted that, having regard to the accused’s intellectual capacity and the manner in which the police entered his house and the subsequent conduct of the police, I should exclude the evidence of the interviews. Dr White gave evidence of the accused’s low intelligence. I accept that the accused is of low intelligence, and is unable to write or read. On the other hand, having observed the accused in the video-recorded interview, I am satisfied he understood all questions which he was asked and he was prepared to continue the interview. His demeanour and his answers demonstrate his ability to comprehend what was happening. After they left the police station, Detectives Fry and Martin both said that the accused agreed to point out the premises of various people who had been mentioned in the interview. I accept their evidence that the accused cooperated throughout. In my view, the accused has failed to satisfy me of any reason why I should exercise my discretion to exclude the evidence of the interviews on the 15 June 2002.
The search of the premises at 11 Warren Street, Angle Park
Detective Rowney gave evidence about his attendance at the premises. He said that after he had entered the premises at about 2.19 p.m. on Saturday 15 June 2002, he telephoned the Physical Evidence Section and requested their attendance. He spoke to Constable Van Der Ploeg and asked him to attend at 11 Warren Street to examine the premises. He was in possession of a general search warrant on 1 January 2002, which was valid for six months. Detective Rowney was asked:
“Q.What reasons were you wanting to search this particular house of Michelle Ryan.”
He answered:
“A.We were trying to establish her movements before her death, so you’re looking for banking records. We would try to determine whether she was murdered at Gawler River or elsewhere so we would be looking to see if there’s any physical evidence of a murder scene at that house. We would be looking for evidence of association with other people, i.e., her friends, any vehicles she may have, any telephone records of people she may have called. Generally trying to obtain a background as to who that person is and their activities.”
Detective Rowney said that Constable Van Der Ploeg arrived at about 3.50 p.m. with Sergeant Thomas. He had waited at the premises for them to attend. Detective Rowney told Constable Van Der Ploeg that he wanted him, who was trained in collecting physical evidence, to conduct a search of the premises. Detective Rowney then left the house but remained in the vicinity conducting various inquiries at Warren Street and Suffolk Street, Angle Park. He said that during the course of the afternoon he walked back to 11 Warren Street to ascertain how the search was progressing. He was available for Constable Van Der Ploeg to speak to him on a mobile phone. He said that he returned to the premises and when Constable Van Der Ploeg and Sergeant Thomas had completed their work, all police left the premises together.
Constable Van Der Ploeg gave evidence that he has been trained in the collection of physical evidence. He confirmed his attendance at the premises at 11 Warren Street, Angle Park, where at 3.50 p.m., he spoke to Detective Rowney who requested and directed him to examine the premises, both inside and outside and to take photographs. He believed that he was acting under the general search warrant issued to Detective Rowney. He said,
“I spoke with Detectives Rowney and Jenny O’Donohue, also a detective of Major Crime, and obviously had some discussion with him as to why we’re there basically and what he expects and, at his request and direction, we then examined the premises, both the interior and the exterior, and we’ve taken photographs and subsequently we collected some exhibits too.”
Constable Van Der Ploeg said that if, whilst he had been searching the house, something had arisen which urgently required attention, he would have contacted Detective Rowney for advice. Whilst at the premises he collected some items of blood, which were observed in the toilet, and he also collected some pieces of denim which he observed in various rooms in the house.
Mr Vadasz objected to the admission of evidence obtained upon the search of the premises on 15 June 2002.
Section 67 of the Summary Offences Act 1953 provides:
“General search warrants
67. (1) Notwithstanding any law or custom to the contrary, the Commissioner may issue general search warrants to such members of the police force as the Commissioner thinks fit.
(2)    Every such warrant must be in the form in the Schedule, or in a form to the same effect, and must be signed by the Commissioner.
(3)    Every such warrant will, subject to prior revocation by the Commissioner, remain in force for six months from the date of the warrant, or for a shorter period specified in the warrant.
(4)    The member of the police force named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a)    the member may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that –
(i)an offence has been recently committed, or is about to be committed; or
(ii)there are stolen goods; or
(iii)there is anything that may afford evidence as to the commission of an offence; or
(iv)there is anything that may be intended to be used for the purpose of committing an offence;
(b)    the member may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that –
(i)there are stolen goods; or
(ii)there is anything that may afford evidence as to the commission of an offence; or
(iii)there is anything that may be intended to be used for the purpose of committing an offence;
(c)    the member may seize any such goods or things to be dealt with according to law.”
Mr Vadasz submitted that the search of the premises at 11 Warren Street, Angle Park, was not authorised. He relied on the following grounds. Firstly, he submitted that there was no reasonable cause to suspect that there was anything in the premises that may afford evidence as to the commission of an offence. Secondly, he argued that Constable Van Der Ploeg, who conducted the search, was not an assistant of Detective Rowney within the meaning of s 67(4)(a).
The premises were the last known premises at which the deceased resided. The police had information that she had lived there with the accused. They were attempting to ascertain her movements prior to her death. The reasons given by Detective Rowney for wanting to search the premises was that the police were looking for evidence of a murder scene and evidence of the deceased’s association with others, and any background information about her and her activities immediately before she died.
I accept Detective Rowney’s evidence. I am satisfied that he had reasonable cause to suspect that there may be something in the house that may afford evidence as to the commission of an offence.
Constable Van Der Ploeg was asked:
“Q.What authority did you believe you had at that time to conduct the search of the house at 11 Warren Street.
A.Yes; I believed that I was actually acting under the general search warrant belonging to Detective Rowney.
Q.Are you aware that a general search warrant holder can seek assistance to conduct a search.
A.Yes, that’s – when we attend in these sorts of matters it’s generally under that, the permit or authority that we conduct the searches, so yes, I was aware.”
Mr Vadasz submitted that Constable Van Der Ploeg was not an assistant of Detective Rowney. He submitted that an assistant is a person who is subordinate to the principal who gives the assistant directions and supervises the work done by the assistant. Constable Van Der Ploeg is an expert in the collection of physical evidence. He decided in this investigation what might be relevant and he was responsible for the method of collection. He was an assistant of Detective Rowney for the purposes of conducting the search at 11 Warren Street. Mr Vadasz submitted that Detective Rowney was absent for much of the time conducting other inquiries whilst Constable Van Der Ploeg conducted the search.
Mr Vadasz relied on the decision of Olsson J in Swanevelder v Holmes.[11] Olsson J said:
“Subsection (4) of s 67 expressly provides that, upon the issue of a warrant, the member of the police force named in it may, at any time of the day or night, inter alia, “with such assistants as he thinks necessary, enter into, break open and search” any house, etc. The word “assistant”, according to its normal meaning, connotes a helper or a person who aids a superior in some work, ie a person who is actively engaged in the same task as the superior and who positively aids him in the discharge of it. Moreover, the holder of a general search warrant is invested with quite sweeping powers.”[12]
[11] (1990) 52 SASR 549
[12] Ibid at 558

Doyle CJ considered this question in R v Long & McDonnell.[13] In considering the validity of a search of premises in which equipment for the manufacture of prohibited drugs was found by police officers, the Chief Justice observed:
“That warrant conferred a power to enter premises, with such assistants as Detective Ranger thought necessary, if he had reasonable cause to suspect that an offence had been recently committed in the premises. The belief was also a sufficient basis for the entry of the other three police officers, acting as his “assistants” for the purposes of s 67(4)(a) of the Summary Offences Act 1953 (SA). They were his assistants because they were acting under his general direction.”[14]
[13] (2002) 224 LSJS 193
[14] Ibid at 196 [27]
I accept the approach of Doyle CJ. In my opinion Olsson J’s view that an assistant must be inferior to and aiding a superior engaged actively in the same task is too restrictive.
Often an investigator will seek assistance of experts. That expert may attend the scene and collect exhibits. He is not under direction, yet he is assisting the investigating officer. To that extent he is to be regarded as an assistant.
If I am wrong and the evidence was unlawfully obtained, I would exercise my discretion and allow the evidence in any event. In R v Mihail Albu & Anor[15], Cox J observed:
“Further, even if these conclusions are wrong, this is a case in which I would be prepared to exercise my discretion in favour of admitting the police evidence of what they found at the respective premises, and the evidence of the conversations that took place there, see R v Conley (1979) 21 SASR 166 and the factors to be considered set out in the judgment of Bunning v Cross (1978) 141 CLR 54 at 78-80).”[16]
[15] (Unreported) 22 November 1995, 13 December 1995, BC9502360
[16] Ibid at 16.
In R v Angelo Frantzis and Anor[17], the Court of Criminal Appeal considered whether evidence which was obtained during a search in the boot of a motor vehicle was lawfully obtained. Lander J held that the evidence had been lawfully obtained but observed:
“I would be inclined to find that even if the search of the vehicle was attended by illegality, in my opinion, it would have been within the proper exercise of the trial judge’s discretion to refuse to exclude the evidence (Bunning v Cross (1978) 141 CLR 54). The police officers were acting reasonably and sensibly. If there was any illegality, it could only have been a technical and not of a wilful or malicious nature. Such illegality would not have affected the cogency of the evidence obtained. Further, the evidence obtained was evidence which it was important that the fact-finder have in its inquiry into the truth of a serious criminal charge (Wilson v R; Morrison v R (supra) at 440; Bunning v Cross (supra)).”[18]
[17] (Unreported) 22-23 February 1996, 28 May 1996, BC9602769
[18] Ibid at 31-32.
My reasons to allow the evidence include the fact that the accused was made aware of the investigator’s intention to search his premises. He cooperated and provided them with a key. He suffered no prejudice.
The evidence of witnesses of the relationship between the accused and the deceased
The prosecution sought to adduce evidence from a number of witnesses of their observations of arguments between the accused and the deceased over a period of approximately six months prior to the death of the deceased. Some of those witnesses saw acts of violence when the accused is said to have hit and pushed the deceased. A number of the witnesses heard the accused threaten the deceased and, in particular, state that he would kill her if she left him.
Mr Henchliffe submitted that the evidence is relevant and probative. He contended that the evidence is relevant to motive. It is also relevant to demonstrate that the relationship was unstable and subject to acts of violence by the accused which, if accepted, could lead to the conclusion that the accused killed the deceased.
Mr Vadasz submitted that any evidence of acts of violence or threats by the accused to the deceased should be excluded. He submitted that the prosecution case is entirely circumstantial. There is no direct evidence linking the accused to the murder. He contended that there is evidence that, over the past year or so, the deceased had been the victim of assaults on the part of others. The deceased is said to have mixed with people who had a violent background, who consumed drugs and alcohol to excess. Mr Vadasz said the evidence sought to be led by the prosecution cannot, in the circumstances, lead to the conclusion that the only rational explanation to be drawn is that the accused killed the deceased. He submitted that the test for the admissibility of such evidence is that the only reasonable conclusion which can be drawn from it is that the accused killed Ms Ryan. He argued that the evidence failed the test, as there was a rational explanation that someone other than the accused could have killed Ms Ryan. He relied on the fact that she mixed in a group in which drug taking was prevalent, and with others who had criminal and violent backgrounds.
Mr Vadasz relied on the majority judgment of the High Court in Pfennig v The Queen.[19] In a joint judgment, Mason CJ, Deane and Dawson JJ said:
“Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged (61). The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused (62). Here “rational” must be taken to mean “reasonable” (63) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.”[20]
[19] (1994-1995) 182 CLR 461
[20] Ibid at 482-483
Doyle CJ considered the decision of the High Court in Pfennig, in R v Nieterink.[21] The Chief Justice was of the view that there are categories of evidence which disclose other criminal conduct by an accused which are admissible, even though the evidence does not satisfy the test stated in Pfennig. In explaining his conclusion, he referred to the decision of the High Court in Wilson v The Queen[22], which had been referred to with approval by some members of the High Court.
[21] (1999) 76 SASR 56
[22] (1970) 123 CLR 334
In Wilson’s case, the accused claimed that his wife’s death had been caused by the accidental discharge of a gun. Evidence was led of the deceased having said to the accused on previous occasions, in the presence of others, that she knew he wanted to kill her for her money. The evidence was held to be admissible.
Barwick CJ said:
“The fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone. The evidence of which the admissibility was challenged on behalf of the applicant consisted of accounts given by witnesses who had heard the utterances to which they deposed. There were two occasions on which a witness spoke of a then current quarrel between the applicant and his wife. In respect of the earlier of these occasions, said to have taken place in Tasmania in 1967, a witness stated that he heard the quarrelling though the parties were not within his sight and that he specifically heard the deceased arguing and say to the applicant, “I only know you want to kill me for my money”. In respect of the later of these occasions, said to have been in the month of March 1968 in Tasmania, a witness said that the applicant in the course of a quarrel with the deceased in the presence of others besides the witness, pushed her to the ground for no other reason than that she had not desisted from rubbing the duco of her motor car when he had told her to stop doing so. Whilst on the ground the deceased according to the witness had said “I know you want to kill me, why don’t you get it over with”. On the first occasion the witness did not hear any reply by the applicant and on the latter occasion the applicant made no reply.”[23]
[23] Ibid at 337
He continued:
“Before making a brief reference to these cases, I should observe that we are not concerned here with the reception of evidence of prior acts in order to establish systematic conduct or to negative accident, a matter with which the court was dealing in R. v. Bond (1). None the less the sentence in the judgment of Kennedy J. in that case from which I now quote whether or not so intended, is, as a statement of relevance, in my opinion, of universal validity and is not limited to any particular aspect of the relationship of which his Lordship spoke. “The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial (2).”[24]
[24] Ibid at 338
Menzies J, with whom McTiernan and Walsh JJ agreed, said:
“It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.”[25]
[25] Ibid at 344
Doyle CJ returned to the question of the admissibility of “propensity” evidence in R v Palaga.[26] He said:
“In R v Nieterink (1999) 76 SASR 56, I considered Pfennig and other cases at some length. I rejected a submission that whenever evidence discloses the commission of an offence other than the offence charged, and the evidence is tendered in proof of an offence, that evidence must meet the test stated in Pfennig. My conclusion was as follows at 71-72: “My conclusion from my consideration of the reasons of the various members of the High Court in BRS v The Queen (1997) 191 CLR 275 and in Gipp v The Queen (1998) 194 CLR 106 is that most members of the Court have, at various stages, accepted the admissibility of evidence of uncharged criminal conduct, independently of the operation of the exclusionary principle. It is not easy to extract clear and precise statements of principle, because, as is so often the case with issues that arise in connection with the law of evidence, the application of the principle in the particular case depends very much upon the manner in which the evidence is used in the particular case. Nevertheless, I am satisfied that the principles stated in Hoch v The Queen (1988) 165 CLR 292 and Pfennig, which I have called the exclusionary principle, do not govern exclusively the admission of evidence of uncharged criminal acts.” I adhere to that view. I do not propose to repeat my reasoning. In reaching that conclusion I do not consider that I return to the former approach of admitting propensity evidence as long as it is relevant to some other issue than propensity.”[27]
[26] (2001) 80 SASR 19
[27] Ibid at 31 [44-45]
In The Queen v Hissey, the evidence of previous acts of violence by the accused towards the deceased were led.[28] The deceased died from the effects of a blow in the abdomen. The accused denied that he inflicted the blow, or that he was present when the blow was inflicted. Bray CJ, Hogarth and Mitchell JJ, in a joint judgment, held the evidence was admissible. They said:
“Evidence of this nature is not to be led as evidence of bad character or of a tendency to use violence on the part of the appellant. Such evidence is admissible for the purpose mentioned by the learned trial judge, namely that of showing the relationship existing between the appellant and the deceased (Wilson v The Queen(4)). We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living. If evidence of this nature were to be excluded as being technically inadmissible, then equally it would be technically inadmissible for evidence to be tendered to the jury which might be favourable to an accused person, for example of a man having lived with his wife on terms of affection and harmony over a long period of years; and we think that such evidence would clearly be relevant and indeed important. When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime: R. v. Ball(5), per Lord Atkinson at p. 68; Wilson v. The Queen(6), per Barwick C.J. at p. 339. So here the evidence was admissible not only to prove malice aforethought, but also to prove that the appellant was responsible for the death of the deceased. The jury evidently declined to give effect to it for the former purpose, since they acquitted the appellant of murder, but they were at liberty to use it for the latter.
There is, of course, a distinction between direct evidence of violence by the appellant against the deceased, whether from eye-witnesses of the violence or from admissions by him, and evidence of marks or bruises seen on the deceased but not connected by direct evidence with the appellant. The latter class of evidence is only admissible if there is circumstantial evidence raising a presumptive inference that he was the author of the injuries (Shaw v The Queen(7)). As we have said, we think there was such evidence here.”[29]
[28] (1973) 6 SASR 280
[29] Ibid at 288-289
The evidence in this case is relevant to motive, to the relationship between the accused and the deceased, the identity of the killer and to the intention of the accused if a jury concluded that he had killed her.
I therefore rule the evidence of past actions of the violence is admissible.
As to the evidence of threats to kill, for the reasons given I consider the evidence to be admissible. Such evidence is probative of the identity of the killer, the intention of the accused and explains why the accused might have killed the deceased. In particular, if the jury concluded that the accused was possessive of the deceased and controlling of her, her refusal to obey him or cooperate with him when he demanded she leave Port Augusta with him is evidence which not only goes to his motive, but may be probative of the identity and intention of the accused as the killer.
Mr Vadasz objected to evidence that not long before her death the deceased’s hair had been cut short. Prior to her death, the deceased complained that the accused had cut it. This evidence is relevant to the accused’s state of mind, his jealous disposition and his desire to control the deceased’s movements. Accordingly, it is relevant and admissible evidence. I do not consider its prejudicial value outweighs its probative effect.
I ruled on the admissibility of the evidence of each witness on 12 November 2003, particulars of which were set out in the Rule 9 notices. It is not necessary to deal with each witness in these reasons. My rulings and reasons for them are contained in the transcript.
CITATIONS IN ORDER AS THEY APPEAR IN THE JUDGMENT
[1] (2002) 82 SASR 85
2 Ibid at 88
3 (2002) 220 LSJS 102
4 Ibid at 108
5 (1982) 30 SASR 226
6 Ibid at 239-240
7 (1992) 58 SASR 501
8 Ibid at 505
9 (1980) 23 SASR 504
10 Ibid at 583
11 (1990) 52 SASR 549
12 Ibid at 558
13 (2002) 224 LSJS 193
14 Ibid at 196 [27]
15 (Unreported) 22 November 1995, 13 December 1995, BC9502360
16 Ibid at 16.
17 (Unreported) 22-23 February 1996, 28 May 1996, BC9602769
18 Ibid at 31-32.
19 (1994-1995) 182 CLR 461
20 Ibid at 482-483
21 (1999) 76 SASR 56
22 (1970) 123 CLR 334
23 Ibid at 337
24 Ibid at 338
25 Ibid at 344
26 (2001) 80 SASR 19
27 Ibid at 31 [44-45]
28 (1973) 6 SASR 280
29 Ibid at 288-289

[2004] SASC 11

15 January 2004