R v Kostaras No. DCCRM-01-1042 - [2003] SADC 53

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…

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.

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Details

Case: [2003] SADC 53
Decision Date: 20 March 2003

CaseChat Overview and Summary

The case of R v Kostaras concerns a criminal proceeding in which the accused sought the exclusion of a police interview record on the grounds that his decision to speak to the police was influenced by his principal, Ms Parha, such that he was not acting of his own free will. The case was heard in the South Australian District Court. The central legal issue was whether the accused's participation in the police interview was voluntary and made in the exercise of his free choice, in accordance with the principles set out in McDermott v R.

The court found that the accused was influenced by Ms Parha's directive that he should attend the interview and answer questions, which she communicated to him both before and during the interview. Ms Parha's presence and encouragement during the interview created an environment where the accused felt compelled to comply with her advice rather than exercising his own free will. The court considered that the accused's responses during the interview, where he stated the importance of answering questions, were reflective of his desire to follow Ms Parha's guidance rather than his independent decision-making. Therefore, the court concluded that the accused did not exercise his free choice to speak or remain silent, and the onus on the Crown to establish the voluntariness of the interview had not been met.

As a result, the court granted the accused's application to exclude the police interview record from evidence in the trial. The court emphasised that had the police informed the accused of the allegations prior to the interview, the situation might have unfolded differently. However, the court acknowledged that the police officer, Detective Sherry, had legitimate reasons for not disclosing the allegations over the phone. The exclusion of the interview record was deemed necessary to uphold the integrity of the legal process.

Orders