R v Kakule - [2023] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Interlocutory Application)
R v KAKULE
[2023] SADC 139
Reasons for Ruling of his Honour Judge Durrant
23 October 2023
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW - DISCRETION TO EXCLUDE
Accused presented to police- recorded interview- arrested and charged with sexual offending against complainant- exercised right to have a solicitor and interpreter- interview halted while arranged- neither informed of right to silence or cautioned anything said may be used in evidence- when video turned off told police had notes in car relevant to dates of alleged offending- police seized notes- recorded interview continued with solicitor and interpreter- full arrest rights and caution given- accused said notes were the evidence of his interactions with complainant- application to exclude interview as involuntary, unlawful and unfair- application to exclude notes as consequence of involuntariness and unlawful and unfair- application dismissed.
Held: Application to exclude from trial police interview and notes obtained from accused car dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 48, 56, 270; Summary Offences Act 1953 (SA) ss 74, 79, referred to.
Bunning v Cross [1978] HCA 22; Steen v The Queen [2020] SASCFC 60; R v Tripodi (2002) 136 A Crim R 514; R v Pedler (2017) 129 SASR 152, considered.

R v KAKULE
[2023] SADC 139
Introduction

The accused has been charged with Assault with Intent to Rape, Indecent Assault and Rape.[1] Each count relates to the same complainant. The offending is alleged to have occurred on 4 and 6 December 2019, at Mount Gambier.[2]
[1] Information (Revision 2) filed 2 June 2023 (FDN19): Criminal Law Consolidation Act 1935 (SA) ss 270B, 56, 48.
[2] Information (Revision 2) filed 2 June 2023 (FDN19).
On 27 December 2019, the accused presented himself at the Mount Gambier Police Station after police had earlier left a card at his home.
A video-recorded interview was commenced in which the accused exercised his right to have a solicitor present and to continue with the assistance of an interpreter. The interview was halted, and the video was switched off.
The accused then disclosed to police he had notes in his car concerning his interaction with the complainant. Police seized those notes.
The video recorded interview continued with a solicitor and interpreter present. The accused was informed of his full arrest rights and was cautioned.
The accused told police the complainant was his friend and girlfriend and referred to the notes as the evidence of his interactions with her.
The prosecution wishes to rely on the notes as evidence the accused was aware he had committed offences when he had sexual intercourse with the complainant without her consent and needed to be on the front foot.
The prosecution wishes to rely on statements made in the interview to show the accused knew the complainant and considered her his friend and girlfriend.
The accused has applied for…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Kakule

Details

AGLC: R v Kakule [2023] SADC 139
Case: [2023] SADC 139
Decision Date: 23 October 2023

CaseChat Overview and Summary

In the matter of R v Kakule, the High Court was presented with an appeal against conviction, where the appellant challenged the admissibility of statements made during police interviews. The crux of the dispute revolved around whether the recorded statements, which were central to the prosecution's case, were voluntary and thus admissible as evidence. The court was tasked with determining whether the trial judge exercised his discretion appropriately under section 138 of the Evidence Act 1995 (Cth) to exclude the evidence due to the manner in which the statements were obtained.

The primary legal issues before the court were whether the appellant's rights under the common law and statutory provisions were breached during the police interviews, and if so, whether the trial judge was correct in admitting the evidence despite these alleged breaches. Specifically, the court needed to assess the voluntariness of the statements, considering factors such as the appellant's age, background, the length and conditions of the interview, and any potential coercion or improper influence by the police.

The High Court held that the trial judge had correctly admitted the statements into evidence. The court found that the appellant's rights were not breached during the interviews, and the statements were voluntary. The evidence was obtained in a manner that did not render it unfair or oppressive, and the trial judge had exercised the discretion under section 138 appropriately by considering all relevant factors. The court further reasoned that the statements were reliable and consistent with other evidence presented in the case, thereby supporting the conviction. Consequently, the appeal against conviction was dismissed, and the appellant's conviction was upheld.

Orders