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 the police interview and notebook to be excluded from evidence: as his statements were made and the notes were obtained involuntarily or unlawfully; or alternatively by exercise of the Bunning v Cross or unfairness discretion.[3]
[3] Interlocutory Application filed 15 September 2023 (FDN34); Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
For the brief reasons that follow, I have dismissed that application.
Established Facts
I have found the following facts established.
Presentation at the Police Station
The accused was born in the Congo and lived there until 2004. Following a period in a refugee camp, he came to Australia in 2010.
The accused went to the police station in response to a card left at his home by police on 27 December 2019. He was accompanied by a male who spoke both a language the accused could understand and English.
His experience with police in the Congo included witnessing police violence against others. He had little experience with police in Australia but had never seen police in Australia be violent.
Interview with Police- prior to interpreter and solicitor
Two police officers, McGregor, and Wales commenced a video interview.
The accused responded and interacted in English at times and his companion provided some interpretation at other times.[4]
[4] Summary Offences Act 1953 (SA) s 79A.
The accused had been placed under arrest at the beginning of the interview.
He had been told he had been charged with attempt rape, two counts of rape and indecent assault of the complainant on 4 and 6 December 2019.
McGregor informed the accused he could make a phone call.[5] He declined.
[5] Ibid, s 79A(1)(a).
McGregor informed the accused he could have solicitor, relative or friend present.[6] As well as the male who was there, he asked for a lawyer.
[6] Ibid, s 79A(1)(b)(i).
McGregor informed the accused, as English did not appear to be his first language, he could have an interpreter if required.[7] The accused said he wanted a Swahili interpreter.
[7] Ibid, s 79A(1)(b)(ii).
Police took steps to engage an accredited interpreter and contact a lawyer.
The accused had not at that time been informed of his right to silence and nor had he been warned anything he said may be taken down and used in evidence.[8]
[8] As required by s 79A(1)(b) (iii) of the Summary Offences Act 1953 (SA).
As steps to organise a lawyer and interpreter were being taken, Wales said that it was important the accused spoke to a lawyer before any interview.
Wales said to the accompanying male, in the presence of the accused, the accused had the right to decline to answer questions.
A lawyer was called. She agreed to come to the station.
The lawyer was told, with the accused and his companion listening, police would not further interview the accused until she had spoken to him.
An interpreter was organised to dial in when needed.
The video recording of the interview was stopped at 1.07pm.
Exchange while Recording Stopped
After the camera had been turned off, the accused said he had a book in his car and wanted to access it.
The accused wanted to refer to that book for dates and times written in it and the dates of the alleged offences for which he had been arrested.
McGregor told him as he was under arrest, he could not get the book.
Wales either offered to get the book or the accused requested him to get it.
The accused handed Wales his car keys.
McGregor made an entry in her notebook ‘Book in car – requested it’.
Wales went out to the car. He found an A4 schoolbook containing, amongst other things, handwritten notes in an unknown language.
The book was seized by police, and a copy of the notes in it given to the accused.
The notes comprise five handwritten pages.[9]
[9] Exhibit VDP3.
A translation of the notes detail interactions, including sexual intercourse, between a man and a woman on 25 and 27 November, and 6 and 7 December.[10]
Recording Recommenced- Solicitor present
[10] Ibid.
The video recording was recommenced with the solicitor present.
Wales said the accused had made them aware of a diary he had written in relation to some stuff that might have occurred, and police had grabbed it.
The solicitor was given a photocopy of the handwritten notes.
The recording was stopped at 1.40pm.
The accused met with his solicitor.
Recommenced Recording with Solicitor Present and with Interpreter
The recording recommenced at 1.54pm.
The solicitor was present. An interpreter was on the phone.
The police gave the accused his full arrest rights and standard caution.
From the point his right to silence was interpreted, the accused had understood he was not required to answer questions.
The solicitor, at the completion of the giving of those rights, was asked if she needed more time. She replied they were right to proceed.
The accused was again told he did not have to answer questions and was asked to repeat that right.
He responded he did not have much to say on that because police had ‘all the evidence and the copy is just there for you’.[11] As he said that, the accused gestured to the copy of the notes he had been given.
[11] Exhibit VDP1.
The accused agreed he had received advice from his solicitor.
The accused described the complainant as his friend and girlfriend. The accused was asked what things they did together.
The accused answered in Swahili. It was interpreted as ‘you have the evidence word written there in the, inside there’.[12]
[12] Ibid.
The accused was asked by police ‘the evidence written?’ His solicitor said, ‘in the diary’ and the accused said in English, ‘in the diary’.
The accused was asked what was in the diary. He gave a non-responsive answer. He was asked whether he wrote the diary. He replied in English, yes.
The accused was asked “[s]o can you tell me what’s in it?’
The solicitor told the accused he did not have to answer any further questions.
Wales asked the accused if he did not want to answer any further questions. The accused declined to answer any further questions.
Submissions of the Defence
The submissions of the defence were premised on it being in dispute that the accused is the author of the notes.
The defence said the accused had not been given his full arrest rights– in particular, his right to silence– as soon as reasonably practicable.[13] Further, he had not been warned anything he said could be used in evidence against him.
[13] Summary Offences Act 1953 (SA), s 79A(3).
The defence criticised police for not, before an interpreter had been present, informing the right to silence and warning anything said could be used in evidence. It may have, submitted the defence, impacted, and alerted the accused to his right to silence, and could not have hurt.
Defence submitted that as soon as the accused was informed of his rights in Swahili, he had declined to answer questions put.
In that respect, the failure to give the arrest rights in full meant anything said before the accused declined to answer questions had been involuntary. That, it was submitted, was because the past bad experience of the accused with police in the Congo had infected his interactions with these police and he felt compelled to speak to them as he considered he would be harmed if he had not.
The whole of the record of interview therefore, submitted the defence, should be excluded on that basis.
Alternatively, it was submitted, the failure to caution for more than an hour, whilst police continued to engage the accused in conversation, amounted to unlawful conduct.
Given that, it was submitted, the whole of the record of interview should be excluded by exercise of the discretion referred to in Bunning v Cross.[14]
[14] Bunning v Cross supra.
In the further alternative, the record of interview should be excluded as it would be unfair to the accused to admit it. That is, the record of interview should be excluded in exercise of the unfairness discretion.
In respect of the notebook, the defence argued it had been unlawfully obtained as the direct result of an off-camera conversation prior to caution and prior to the accused being availed of his right to a solicitor and interpreter.
In the alternative, submitted the defence, the notes should be excluded in the exercise of the unfairness discretion.
Further, submitted the defence, the off-camera discussion had not been recorded or read back when the video had re-started, as required.[15]
[15] Summary Offences Act 1953 (SA), s 74D
That impropriety was exacerbated, it was argued, by detaining the accused and continuing to engage in conversation with him, absent a caution.
The failure to record the off-camera interview, argued the defence, also exacerbated the unfairness.
The terms of the off-camera conversation, it was submitted, may be relevant to the assessment of the jury as to its contents and may relate to important questions such as when and why the entries were written.
As that conversation was not recorded, it was submitted, the interests of justice required its exclusion.
Submissions of Prosecution
The prosecution submitted police had commenced giving the accused his rights and the delay in informing the right to silence was a consequence of the request for a solicitor and an interpreter.
None of the off-camera conversation, it was submitted, related to questions about the allegations made. It had, therefore, not been an interview and no questions about the allegations had been put to the accused by that time.
Nonetheless, there was a caution of sorts, submitted the prosecution, when police said to the companion, in the presence of the accused, he had the right to decline to answer questions.
The accused, it was submitted, did understand his right to silence when interpreted in the interview with his solicitor present. After that, he had answered questions voluntarily.
There was, nonetheless, it was submitted, no involuntariness or overbearing of the will. Particularly, submitted the prosecution, the break was taken to enable a solicitor and an interpreter to be present. Police specifically said they would put nothing more to the accused until that was in place, and they did not.
In the circumstances, submitted the prosecution, what the accused did was make a voluntary unsolicited statement to police about the book.
There was, submitted the prosecution, no unlawfulness by police as they had respected the accused right to a solicitor and interpreter and had halted the interview. Criticism that police should have nonetheless given the caution, it was submitted, overlooked the statutory obligation to ensure the caution is effective.
Given that, submitted the prosecution, there is no basis for the exercise of the Bunning v Cross or unfairness discretion to exclude any evidence in this case.
Consideration
Involuntariness
The accused had, before 2004, seen police violence in the Congo. Since 2010, while in Australia, the accused had not seen or experienced police violence or unlawfulness.
Nothing the police did or said in their interactions with the accused on 27 December 2019, represented any form of coercion or improper pressure. Notwithstanding any feelings of apprehension felt by the accused, there had been no overbearing of his will by police.
In respect of his entire interactions with police that day, the asserted involuntariness of his statements made to police has not been made out.
Presentation at the Police Station
When police left their card at the home of the accused, they had proposed to interview him within the terms of s 74D of the Summary Offences Act 1953 (SA).[16] When he arrived at the station, they had commenced that process by taking him to an interview room and, on video, had arrested and charged him.
[16] Steen v The Queen [2020] SASFC 60 per Peek J at [23]- [26].
McGregor and Wales understood their obligation to ‘as soon as is reasonably practicable’ inform his rights and warn anything he said may be used against him.[17]
[17] Summary Offences Act 1953 (SA) s 79A(3).
They started to do that, but the accused wanted a lawyer and interpreter. They halted the process and made clear to the lawyer contacted they would not interrogate the accused until she and an interpreter were present. Police took immediate and successful steps to get a Swahili interpreter.
The defence criticised police for not continuing to inform his rights and warn him. That was a matter of judgment for the officers involved. I consider they exercised their judgment conscious the right to silence, and caution, had not been given and intended to give them when a solicitor and interpreter were present.
Wales said after those two requests, to the companion and in the presence of the accused, the accused had the right to decline to answer questions.
Police also said they would not interrogate the accused until his lawyer and interpreter were present and it was then they had turned the camara off.
Those acts were consistent with the obligation ‘as soon as is reasonably practicable’ to inform the accused of his rights and warn him.[18]
Was it ‘reasonably practicable’ to inform and caution the accused without an interpreter?
[18] Ibid.
Whether it was ‘reasonably practicable’ to warn and caution absent an interpreter, in the circumstances, is an objective consideration.[19]
[19] R v Steen supra at [34].
Giving those words their ordinary meaning, police were required to inform the rights and caution as soon as they were reasonably able to be do so successfully.
Given the request for an interpreter, the two police officers could not have been reasonably satisfied what they had said had been effective or successful, or that anything they further said would be effective or successful, absent an interpreter.
The accused argued police should have, notwithstanding his request for an interpreter, completed the rights and caution.
The unreasonable impracticability of that approach is demonstrated by the accused’s evidence about his understanding.
He said he only understood his right to silence when it was interpreted to him.
That was his position notwithstanding he had been present when the informal statement of that right had been expressed by Wales, after he had met with his solicitor and after he heard McGregor inform that right in English.
Further, the delay in getting a lawyer and interpreter had been objectively short. The police had not engaged the accused in conversation in that time.
In such circumstances, halting the rights and pausing the interview until the lawyer had arrived and an interpreter was present, did not breach the requirement to inform the accused of his rights and caution as soon as reasonably practicable.
I find there was, in respect of the obligation to inform and warn the accused on 27 December 2019, no unlawfulness on the part of police.
Request for book- obligation to record
I also find when police turned off the video, they had no intention to interrogate and did not interrogate the accused.
I find the accused made an unprompted statement he had a book in his car and wanted to access it.
I have found he did so because he wanted to refer to dates and times written in the book against the dates of the alleged offences for which he had been arrested.
I have found the accused handed Wales his car keys.
The defence contended the experience of the accused with police in the Congo was an external factor going to involuntariness in telling police about the book. That is, he felt compelled to give that information, or he would be harmed.
The unprompted statement did not arise from any interrogation or any external factor on the accused.
As I have already found, there were no external factors at play. Any perception of the accused, contrary to his experience with police in Australia and the way these police had treated him, was an internal factor to the accused.
All that had occurred in the interview up to that point was police had provided the accused information about why he was there and had been arrested, informed him of the charges, the dates alleged, the identity of the complainant and commenced informing him of his rights.
The defence criticised police for failing to stop the accused from making his unsolicited request for his book and video record that exchange or recount it when the video was turned back. The defence said it was an interview.
The exchange happened quickly. Given that, I do consider it was reasonably practicable to record what was said in writing and recount it on video.
While police did not initiate the statement, they did engage in a discussion thereafter. The dialogue about getting the book which grew from the statement was a conversation.[20] It was an interview.
[20] Ibid at [48]- [60].

As an interview, police were obliged to recount the conversation and give the accused the opportunity to comment, deny or amend.[21]
[21] Ibid at [25]- [26]; Summary Offences Act 1953 (SA) s 74C, 74D(1)(c).
When the recording was recommenced with the solicitor present, Wales said to the accused and his solicitor police had been made aware of a diary the accused had written in relation to stuff that might have occurred and had grabbed it.
Off camara conversation- interests of justice to exclude
What Wales said when the video restarted fell short of what was required. Police had not made a written record of the interview beyond what McGregor recorded. They had not read a written record aloud on video and invited the accused to interrupt to point out errors or omissions and amend if required.[22]
[22] Summary Offences Act 1953 (SA) s 74D(1)(c).
Such non-compliance would render that interview inadmissible unless I am positively satisfied it is in the interests of justice to allow its admission.[23]
[23] Steen v The Queen [2020] SASCFC 60 per Peek J at [20]. Ibid, s 74E(1)(b).
I am satisfied it is in the interests of justice to allow its admission as it was voluntary, important and reliable.[24]
[24] R v Tripodi (2002) 136A Crim R 514 per Doyle CJ at [32]-[38]; R v Pedler (2017) 129 SASR 152 per Vanstone J at [21]; Steen Supra at [95].
The statement of Wales paraphrased what the two officers and the accused said had occurred. It contained several elements: (1) police had earlier been made aware of a book the accused had; (2) the accused had written the book in relation to stuff that might have occurred relevant to the charges laid; (3) police had grabbed a book; (4) police had retained the book; and (5) police had given the accused a copy of the notes from the book.
The accused had also provided his keys to Wales and he and his solicitor had been given a copy of the notes. The solicitor had spent 14 minutes with her client before the interview was recommenced on video and had been asked whether she wished for more time with the accused. She did not.
Recommenced recorded interview with solicitor present and with interpreter
The recording recommenced at 1.54pm and the solicitor had been present, and an interpreter was on the phone.
The accused had his full arrest rights interpreted.
The accused said from the moment his right to silence was interpreted, he understood he had not been required to answer questions.
The solicitor, at the completion of the giving of those rights, had been asked if she needed more time and replied they were right to proceed.
The accused had again been told he did not have to answer questions.
Given that, there is no basis to exclude what was said in the interview from the time when the accused understood his rights.
What the accused said in that interview from that point had been voluntary, given under caution, and with the assistance of an interpreter and in the presence of a solicitor.
Unfairness discretion- off camera discussion
The defence submitted the terms of the off-camera conversation may be relevant to the assessment of the jury as to its contents and may relate to important questions such as when and why the entries had been written.
As that conversation was not recorded, it was submitted, the interests of justice required its exclusion by exercise of the unfairness discretion.
As for that argument, that is not the only evidence about that topic.
In the interview with his solicitor and after he had been informed of his rights and cautioned, the accused:
·said police had ‘all the evidence and the copy is just there for you’ while gesturing to the notes from his car;
·described the complainant as his friend and girlfriend;
·when asked to tell police some of the things that they did together had said ‘you have the evidence word written there in the, inside there’;
·when asked by police ‘the evidence written?’ had said in English, ‘in the diary’; and
·when asked whether he had written the diary, he said ‘yes’.
In all the circumstances, the conversation which had not been recorded should not be excluded by exercise of the unfairness discretion.
For these reasons, I decline to order the police interview and notebook be excluded from evidence on the basis that the interview was involuntary or unlawful, that the notes were obtained unlawfully or alternatively on the basis, in the event the interview was unlawful, I would have exercised the discretion to exclude in Bunning v Cross or in exercise of the unfairness discretion.