R v Kostaras No. DCCRM-01-1042

R v KOSTARAS
[2003] SADC 53
Judge Anderson
Criminal

Paragraph (1) of the Rule 9 Application filed by the Accused seeks, inter alia, the exclusion of the Record of Interview of 26 July 2000 between the Accused and the Police. It does so on the basis that the Accused was, by virtue of his earlier conversation with, and the presence at the interview of, his Principal, overborne as to whether to speak or remain silent.
In this application the onus is with the Crown to establish, on balance, that the interview was voluntarily.
The facts are within a quite narrow compass.
On 25 July 2000 at 7.30pm Detective Sherry telephoned and spoke to the Accused. He said that he wished to speak to him “about some allegations that have been raised against you”. When the Accused asked what it was all about he was not told. Instead, it was impressed on him that it was “in his best interests” to speak to Detective Sherry as soon as possible. Reference was made to Department of Education investigators being aware of the matter.
At this time the Accused was employed as a school teacher and had been so for many years.
Subsequently that evening the Accused rang his principal at home. The Principal, Ms Parha, said in evidence that the Accused told her of the earlier conversation. He was distressed. She asked him to come to her office the next morning.
This he did. She discussed the request of Detective Sherry with him. In evidence she said that she told the Accused that it was “wrong” (T34) to tell the Police that he was unable to readily attend because of work commitments.
Ms Parha said that she told the Accused that “he should go as soon as possible”: “When police ask you to respond to questions you need to go” (T34). She said that she “constantly encouraged him and strongly said that he needed to answer questions” (T35) (emphasis added).
In answer to the question in examination-in-chief:-
"QDid you say something on the topic of whether or not it was in his interest to answer questions?,
She said;
AI think I said a range of things, that he should go, that it was better for him to go to clarify the matter, and that when police ask you you need to go and complete the business, whatever it is.”
She further said “you need to go …. go ahead and answer the questions” (T35). (emphasis added).
She was asked:-
"QDid you intent to put pressure on him to answer questions.
AYes, I intended him to go in and answer the questions.
QWhy did you have that intention.
ABecause I believed that when the law asks you to respond you ought to respond.
QAt the time you spoke to him, were you speaking to him as his principal and he as your teacher.
ANick and I didn’t have a personal relationship, it was a teacher/principal relationship. We didn’t see each other outside of school.
QDid you intend that your statements would be received by him as directions from you to him.
AYes, he’s a very respectful teacher, and responded to any directions I gave.
QWhat was his response to these directions.
AHe agreed that he would need to go and respond to questions, and I said to him that I would go with him.
QAt that time did you have any idea what the subject of the questions were going to be
ANo.” (T35/36)
Ms Parha was asked as to her observation of the Accused over the period of the 5 years preceding and answered the question:-
"A“Mr Kostaras is a very respectful, compliant person, and I had many occasions to give him directions just in the normal course of duties about how to deal with a student or a parent or any other matter that may have cropped up in the school, just as a matter of course.
QIn terms of your contact with him, was it the case that he would also, short of directions, follow your advice.
AYes.” (T38)
In cross-examination Ms Parha told Mr Henchcliffe of counsel for the Director of Public Prosecutions that she “encouraged [him] to go to the interview … because I was keen for him to answer questions” (T40).
When asked about the need to answer questions from the Police Ms Parha used expressions such as, “if he was asked questions by a police officer he should answer them”.
“a person ought to answer the questions”
“they need to answer questions asked of them”
“must”. (T50) (emphasis added).
Ms Parha was present at the interview and heard Detetective Sherry caution the Accused and explain to him that he need not answer any questions and that any answers could be used in Court. She said that notwithstanding this caution and explanation she:-
“Still believed that he needed to answer the question.
QEven though the policemen had told him he didn’t have to answer them.
AYes.
QDid you understand that he didn’t legally have to answer the questions.
ANo, I didn’t understand that.
QWhen Detective Sherry said ‘Anything you do say may be used in court’, did you understand that part.
ANo, not really. I do now.” (T50/51)
A summary of her evidence in a way is to be found in cross-examination at page 52. Mr Henchcliffe asked:-
"Q“Do you remember that was the gist of what took place.
AYes, I think I had constantly said to him he was obliged to answer the questions, not in the interview, but prior.
QWere you saying that to him.
ABecause I believed that he hadn’t done anything wrong, and that he was obliged, as a citizen, to answer questions, and answer the questions and close whatever the matter is.” (emphasis added)
In addition, Ms Parha said that during the Record of Interview she used small hand movements and head nods to the Accused to encourage him to answer. She did not understand that once the process of interview was underway it could be stopped by simply saying so. She was, at that time, unfamiliar with the legal concept of the right to remain silent.
Detective Sherry said that had there been physical communication between the Accused and Ms Parha during the interview he would have observed it and did not. If he had he would have made a note and did not do so.
Except upon this last topic there was no suggestion that Ms Parha was not a witness of truth. I accept her as such and I accept that there was “body language” type communication between her and the Accused during the Record of Interview.
Plainly, Ms Parha was not a ‘person in authority’ as that concept was discussed by Wood J in R v Dixon (1992) 28 NSWLR 215 at 227.
Her involvement was earlier. It was before the nature of the allegations had been conveyed to the Accused. Were they so conveyed earlier then the whole matter may have taken a different course but I am unable to be critical of Detective Sherry for responding as he did in his initial conversation with the Accused.
In such a circumstance as existed here it is appropriate to have regard to the discretion to exclude as it was discussed by Dixon J in McDermott v R (1948) 76 CLR 501 at 511 when he said;
“… voluntarily made … means substantially that it has been made in the exercise of his free choice.”
I do not understand the most recent statement of the High Court in R v Swaffield (1998) 192 CLR 159 to have altered this principle in this circumstance.
Whilst there is no evidence from the Accused as to how he responded to what his Principal said to him on 26 July 2000 there is, in my opinion, an overwhelming inference from the evidence that he was respectful of and compliant to her and her wishes; that he needed her guidance as his Principal in this matter and, having taken her advice and directions, was prepared to submit himself as she intimated.
This is borne out quite early in the interview when, after the caution has been explained to him and in response to the question from Detective Sherry:-
“… Based on that right that I have just given you will you be answering questions or not?
The Accused said:-
“Yes, it’s important to answer the questions, that’s what I’m here for.”
Detective Sherry asked again:-
“Do you want to answer the questions or not” and the Accused answered;
“Yes, yes I will answer the questions.”
In this circumstance, my opinion is that the Accused was behaving in accordance with his understanding of what Ms Parha’s view of his obligation was when requested by the police. He was doing as he knew she expected. Thus, he did not freely or independently decide whether or not to answer Detective Sherry’s questions or not. As such I am not satisfied, on balance, that it has been shown that he exercised his “free choice” to speak or remain silent notwithstanding the caution he was given and its explanation to him. This conclusion gives weight, “in a common sense way” to the effect of what Ms Parha said to the Accused: Collins v R 1980 31 ALR 257 at 309.
It follows that the onus upon the Crown to show, on balance, that the Accused’s participation in the Record of Interview with Detective Sherry on 26 July 2000 was voluntary has not been discharged.
The application in paragraph (1) of the Rule 9 Application is granted and the Record of Interview of 26 July 2000 is excluded from evidence in this trial. It is not necessary to consider the short conversation between Detective Sherry and the Accused of the previous day.
Nothing short of telling the Accused the nature of the allegations on the telephone on 25 July 2000 could have saved this Record of Interview. Detective Sherry had sound reasons for not so doing but he was not to know what was then to pass between the Accused and Ms Parha and its affect upon the Accused in attending the Record of Interview and responding as he did during it.

[2003] SADC 53

20 March 2003