R v Kolic No. DCCRM-95-1353 Judgment No. D3522

[1996] SADC 3522

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Ruling of His Honour Judge Robertson

Hearing

23/11/96 to 29/11/96.

Catchwords

Ruling as to the admission in evidence of conversations between the accused and Police Constable - failure to caution - failure to inform specific offences being investigated - evidence excluded in exercise of discretion Ruling as to the admission in evidence of conversation between the accused and Doctor and responses thereafter - whether recorded conversation contained in declaration in indirect speech unfair to the accused - whether answers of the accused were unguarded - application refused.

Materials Considered

• R v Szach (1980) SASR 23 504 at 581-583;
• R v Papadelos 151 LSJS 443, applied.
• R v Dolan (1992) 58 SASR 501 at 505;
• R v Duncan &; Others Judgment D2761;
• R v Hooper (1995) 64 SASR 480;
• McLachlan v Opie (1956) SASR 53, considered.

Representation

R:
Counsel: Mr David Whittle - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Accused Karlo Kolic:
Counsel: Mr David Edwardson - Solicitors: CAMATTA LEMPENS

DCCRM-95-1353

Judgment No. D3522

26 November 1996

(Criminal)

R v KOLIC

Criminal

Judge Robertson

The accused, Karlo Kolic is charged with causing bodily harm by dangerous driving under Section 19a(3) of the Criminal Law Consolidation Act, 1935. Particulars of the offence are that the accused on 7 March 1995 at Woodville drove a motor vehicle in a manner which was dangerous to the public and thereby caused grievous bodily harm to Robert Mader.

A voir dire hearing was conducted on 23 November 1996.The accused seeks to have excluded from evidence all conversations between the accused and Christopher William Andrew Pawson, a police officer, contained in Senior Constable Pawson's declaration dated 9 April 1995.The grounds upon which the accused seeks to have the conversation recorded in the declaration excluded are:-

1. That the police officer failed to caution the accused at the commencement of the interview.

2. The police officer failed to inform the accused of the specific offences then being investigated.

On Saturday 8 April 1995, Senior Constable Pawson attended at the accused's home and conducted an interview with the accused.In the first question and answer the accused admitted that he was the driver of a vehicle which was involved in a collision with a motor cycle at the junction of Woodville Road and Norman Street, Woodville on Tuesday 7 March 1995.Thereafter Constable Pawson, for a short time, asked some further questions which involved further details of the accident and some personal details.After informing him that the motor cyclist had sustained serious injuries the following transpired between the accused and Constable Pawson:-

"I said, 'As a result of this conversation, you may be charged with aserious offence.Do you understand this?'

He said, 'Yes'.

I said,'What do you understand this to be?'

He said, 'I understand that the whole books are being thrown against me.I do not remember nothing.I do not remember the bike hitting me.How far do I have to remember?'

I said, 'Let us do it a stage at a time, alright?'

He said, 'Yes'.

I said, 'I am going to ask you some further questions in relation to this matter.You are not obliged to answer these questions unless you wish to do so, but what you say may be given in evidence.Do you fully understand that?'

He said, 'Yes, I understand that, but do not throw the books at me yet.I like a few things to be left open."

Thereafter, Senior Constable Pawson spent some time asking many other questions which were answered by the accused.In the voir dire hearing Senior Constable Pawson gave evidence.In his evidence he said that at the time of the interview the investigation that he was undertaking into the circumstances at the accident was near to completion and virtually all that was remaining was to interview the accused.He also indicated that at the time he interviewed the accused that he was investigating whether the accused had committed a number of offences, one of which was the offence for which the accused now stands charged, namely causing bodily harm by dangerous driving.He admits that he did not inform the accused of precisely the charges that he was investigating, which included the charge of causing bodily harm by dangerous driving.

I have been asked, in the exercise of my discretion, to exclude the entire record of interview contained in the declaration of Senior Constable Pawson dated 9 April 1995.The nature of the discretion and the circumstances of its exercise was considered by King C J in R v Szach (1980) 23 S.A.S.R. 504 at pages 581-582 and he made the following observations in relation to the nature of the discretion and the circumstances of its exercise:-

"It is necessary to inquire whether the police used improper or unfair methods during the course of the interview which rendered it unfair, in the circumstances, to allow what the appellant said to be used against him (The King v Lee).If improper or unfair methods were used, it is also necessary to consider whether, quite apart from any effect which they may have had on the appellant, the public interest in securing proper conduct on the part to law enforcement officers and in avoiding any appearance of curial approval or condonation of improper police methods, requires the exclusion of the evidence. If the occasion for the exercise of the discretion exists, the competing considerations referred to inReg v Ireland, Bunning v Cross, and Reg v Austin must be weighed in deciding how the discretion is to exercised.These are tasks for the trial judge."

In the course of his judgment in Szach King C J commented on the time when a caution should be given and the nature of the caution.At page 583 he said:-

"A stage may come, moreover, in the course of police inquiries when some degree of disclosure is requisite.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 desire, 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.Fairness to the suspect, in those circumstances, requires that he be made aware of the nature of the crime concerning which he is to be interrogated.These considerations led White J. exclude confessions in Reg v Fieldhouse andReg v Hart.I think the fairness may often require that the suspect be told the nature of the crime under investigation at an earlier stage than that at which the investigating officer is required to give the caution".

It is important to observe that in fairness to the accused, his honour considered that at the time of the giving of the caution, or in some circumstances at an earlier time, the accused should be informed of the nature of the crime or crimes regarding which he is to be interviewed.

His honour the former Chief Justice also made some further observations regarding the time when the caution should be administered in The Queen v Dolan
(1992) 58 S.A.S.R. 501 at 505:-

"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 or his right not to answer questions.This is particularly so, where the police officer is about to embark upona systematic interview issuing 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".

In considering the principles applicable to the exercise of the discretion I am indebted to Judge Bishop for the summary of the relevant principles which are contained in his ruling in the The Queen v Papadelos 151 LSJS 443, which summary was updated by his Honour in his ruling in theThe Queen v Duncan and Others (Judgment D2761).

Finally, as the Crown Prosecutor raised the matter in the course of his submissions, I should mention one other relevant factor which I must consider in the exercise of my discretion.This is the matter raised by Chief Justice King in Szach at 585 where he said:-

"It is clearly relevant to a consideration of whether it is unfair to allow an accused person's statement to be used against him by reason of improper police methods, that, irrespective of the conduct complained of, the accused would have made a statement and would have said the same thing.That consideration will not always be decisive, but in some cases it may be.In all cases it is a relevant consideration (The King v Lee)."

In my view, Senior Constable Pawson should have cautioned the accused after he had received the answer to the first question that the accused had given, in which he confirmed that he was the driver of the motor vehicle at the time of the accident.The accused was obliged to answer that question pursuant to Section 38 of the Road Traffic Act and he did so (see: The Queen v Hooper
(1995) 64 SASR 480).Furthermore, I am of the opinion that at the time of giving the caution Senior Constable Pawson should have informed the accused the nature of the offences regarding which he was about to interview the accused, including the offence of causing bodily harm by dangerous driving.At that point the police investigation had, to use the words of Chief Justice King in Szach at 583 "... hardened into an interrogation of a particular person who was likely to be charged with the crime unless he can exonerate himself".

Shortly after the completion of the first question and answer, Senior Constable Pawson did give the accused a caution. However, that caution was not a proper caution because it failed to inform the accused of the nature of the charge or charges to which the interview was directed.As the caution was deficient in that respect it was not a legitimate caution.

The Crown Prosecutor submitted that even if I find that a proper caution was not given that I should not exercise my discretion to exclude the record of interview contained in the declaration of Senior Constable Pawson.He said that in relation to that passage of the interview which I have quoted earlier that, viewed objectively, the accused may be properly regarded as:-

1. Understanding that he may be charged with a serious offence or offences arising out of an accident in which he had been the driver and in which serious injuries had been suffered by the alleged victim; and

2. In the light of that, he understood that he did not have to answer questions, that the answers may be given in evidence; and

3. That there were things that he wished to put to the investigating officer.

He further submitted that as the accused did not give evidence in the voir dire hearing then there is no evidence upon which it could be suggested that those inferences have been displaced.It therefore follows, says the Crown Prosecutor, that the accused would have continued with the interview even if there had been a proper caution given.

I do not accept that the inferences which the Crown Prosecutor asks me to accept, arise from the passage of the accused's interview (which passage I have quoted earlier) upon which the Crown Prosecutor relies.It is clear that he was informed by Senior Constable Pawson that he may be charged with aserious offence.However, I am not satisfied that the other two inferences which the Crown Prosecutor says arises from that passage of the interview do so arise. Further, there is nothing in that passage of the interview or elsewhere which demonstrates that if the accused had been informed that the interview involved a possible charge of causing bodily harm by dangerous driving that he would have continued to answer the questions that were put to him.

As I have said, fairness to the accused, in these circumstances, required that he be given a legitimate caution which included being informed of the nature of the crime or crimes for which he was to be interviewed and in particular that he should have been informed that one of those offences was that of causing bodily harm by dangerous driving.

In my view, it would be unfair to allow what was said by the accused following the first question and answer, to Senior Constable Pawson as contained in Senior Constable Pawson's declaration to be used in evidence.The first question and answer can be properly included because Senior Constable Pawson was entitled to have the question answered pursuant to Section 38 of the Road Traffic Act.I rule that other than the first question and answer that the remainder of the questions and answers contained in Senior Constable Pawson's declaration are to be excluded from evidence.

In the voir dire hearing I was also asked to rule that the Crown be precluded from leading evidence from Doctor Sonia Curnow regarding the conversation she had withthe accused when he was examined at the Queen Elizabeth Hospital on Tuesday 7 March 1995.The conversation included responses the accused made to questions Dr Curnow asked.

There are two declarations of Doctor Curnow.The first dated 18 September 1995 and the second dated 21 November 1996.The Crown Prosecutor told me that the second statement was an expansion of the first.It appears that on Tuesday March 7 1995, shortly after the accident, the accused presented at the Accident and Emergency Section of the Queen Elizabeth Hospital at Woodville.Doctor Curnow undertook an examination of the accused and during the examination had a conversation with the accused which included responses given by the accused to questions asked by Doctor Curnow.The declarations of Doctor Curnow do not contain a record of the conversations between herself and the accused in a question and answer form.The declarations contain a record of the conversation which she had with the accused in indirect speech.Initially, Defence Counsel based his application on two grounds, namely:-

1. That the questions which had drawn the responses from the accused and which responses are contained in summary form in the declaration, are not identified precisely so that it is not clear what questions drew the answers that Doctor Curnow has recorded in her declaration and;

2. The answers were given at a time very soon after the accident in the course of which he was injured and to which he was receiving treatment and as they were given at an unguarded time.

In those circumstances, the Defence Counsel said it would be unfair that Doctor Curnow be permitted to give evidence of the conversation she had with the accused.

As he devleoped his submission, Defence Counsel also objected to the admission into evidence of opinions provided by Doctor Curnow regarding the accused's comments and responses to questions.Her comments such as:-

1. his confusion was quite select;

2. his loss of memory was deliberate;

3. his story was inconsistent

were the subject of the objection.

Counsel also indicated that the accused sought exclusion from the evidence of Doctor Curnow any hearsay statements contained in her declarations.After further discussion between the Crown Prosecutor and myself, the Crown Prosecutor indicated that he did not intend to lead opinion evidence of the nature which I have earlier described.Further, he said it was not his intention to lead evidence from Doctor Curnow which was objectionable as hearsay evidence.He further indicated that it was his intention to lead Doctor Curnow through the conversation on the basis of question and answer.As a result of all of this, the issues that are raised in this application are as follows:-

(a) The accused says he is entitled to know exactly what a witness, called by the Crown, is to say in evidence and where a conversation is recorded in a declaration which is not in question and answer form then it is unfair to the accused that the conversation be led because the declaration does not fully inform the accused of the entire conversation;

(b) That in any event the leading of such conversation in evidence is unfair to the accused as the answers he gave were unguarded at the time when he was in hospital.

In support of the first limb of the accused's application Defence Counsel referred to the decision of McLachlan v Opie (1956) SASR 53.He submitted that in that decision it was argued successfully that it would be unfair to admit the statement which was in narrative form and not in the form of question and answer.Defence Counsel argued that by parity of reasoning Dr Curnow's evidence regarding the conversation with the accused should be excluded here.

In my view the observations in McLachlan need to be considered in their context.The issue in that case was whether confessional evidence recorded by a police officer in indirect speech should be admitted particularly as the police officer admitted that he had not recorded the entire conversation in the interview.

In my opinion, the decision does not lay down a universal rule that where a witness (other than a police officer) is called by the Crown who is going to give evidence of a conversation with the accused, whether it contains a confession, admissions or otherwise, that the declaration must record the conversation in question and answer form and if it does not then the evidence should be excluded on the ground that it would be unfair to the accused. Furthermore, I was not directed to any other authority regarding the proposition that in a declaration of a witness to be called by the Crown (being a witness other than a police officer) in which the declaration only records a conversation in indirect speech that it is impermissible in that form.In other words, that the Crown's obligation to fully inform the accused of what witnesses are available to be called and what is the evidence which is going to be led from those witnesses includes an obligation, where there are conversations with the accused, that the declaration should contain those conversations in question and answer form.

Further, I have been informed by the Crown Prosecutor, that the declaration of Dr Curnow contain her current independent recollection of the conversation she had with the accused.It is not said that certain parts of the conversation have been excluded.In that respect it is unlike the circumstances in McLachlan where the police officer indicated that he had not recorded the entire conversation that took place in the interview with the accused.

I am of the opinion that the record of the conversation between Dr Curnow and the accused in indirect speech as contained in Dr Curnow's two declarations is not unfair to the accused.In those circumstances, I indicate that I am not prepared, in the exercise of my discretion, to exclude the evidence of Dr Curnow of the conversation she had with the accused on the first ground raised by the accused.

The second ground upon which Defence Counsel relied is that the answers of the accused were unguarded answers whilst the accused was being examined at a hospital shortly after being involved in the accident.In such circumstances it would be unfair to the accused to allow that evidence to be given and therefore in the exercise of my discretion I should exclude it.Defence Counsel referred me to the decision of Judge Bishop in The Queen v Berginc (Judgment D3258, delivered 16/5/95).In that case his Honour excluded some questions and answers made by the accused at the scene of the accident to a police officer.At page 3 his honour said:-

"Be that as it may, in my view the accused's answers were properly to be regarded as the unguarded response of a diabetic who had recently been involved in a serious accident and, as such, the dictates of fairness to the accused (the Lee discretion) required that his response not be adduced in evidence."

In my view the comments of Judge Bishop were not meant to be of general application.His Honour was simply exercising his discretion in the circumstances which were presented to him in that case.

It was not argued that it would be unfair to the accused for evidence of the conversation to be led because he was suffering from a specific injury. Defence Counsel's argument was that the answers given by the accused to Dr Curnow were unguarded answers at a time when he was in hospital.

The fact that an accused gives unguarded answers does not of itself lead to the conclusion that it would be unfair to have those answers given in evidence.In exercising the discretion the question that needs to be considered is whether it would be unfair to the accused taking into account all the circumstances to allow particular evidence to go before the jury.In my opinion it is not unfair to the accused to allow Dr Curnow to give evidence of the conversation she had with the accused at the hospital.The application is refused.