R v Lindfield No. DCCRM-96-62 Judgment No. D3643

[1997] SADC 3643

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Ruling of His Honour Judge Pirone (ex tempore)

Hearing

08/07/97 to 11/07/97.

Catchwords

VOIR DIREDefendant charged with possessing methylamphetamine for sale - application for voir dire hearing to exclude record of interview on ground of involuntariness and/or in the exercise of the court's discretion - allegation that the defendant was in a de facto custody and not advised of his rights under section 79A of the Summary Offences Act 1953 - police entertained reasonable suspicion that the defendant had committed alleged offences - police searched defendant's premises for stolen items allegedly stolen from jeweller's store previous night - during search money bags, set of scales and other equipment were discovered - information volunteered by defendant - caution not given soon enough during conversation - application opposed by Crown - held what defendant said to police was not the result of duress, intimidation, persistent importunity or sustained or undue insistence - found defendant at no time formally arrested;police had no intention of arresting him;he was free to leave if he so wished;he was not in a de facto custody situation;he was not intoxicated by drug and/or by alcohol to the claimed extent;he answered all questions fully and freely both before and after the caution-insufficient basis for discretion of court to be exercised in favour of defendant for exclusion of challenged evidentiary material on any basis.Application refused. PRACTICE AND PROCEDURECaution - appropriate time to be given - effect of one not given as required - need to refer to particular crime being investigated - R v Gillen 150 LSJS 482 and various other cases referred to - R v Dolan (1992) 58 SASR 501 applied. DE FACTO ARRESTWhat is - in what circumstances to be deemed - rights of accused - duty of police officers - how discharged - R v Conley (1982) 30 SASR 226;R v Lavery (1978) 19 SASR 515;R v Leecroft (1987) 46 SASR 250;R v S. and J. (1983) 32 SASR 174 considered and applied. APPROPRIATE TEST FOR DETERMINING QUESTIONR v Webb and Hay (1992) 168 LSJS 256 @ 261 and R v Schutze and Cornelius 179 LSJS 418 applied. FAILURE OF ACCUSED TO GIVE EVIDENCER v Sharp (1983) 33 SASR 366 applied CONFESSIONAL STATEMENTSMeaning of voluntariness and whether voluntarily made - R v McDermott v R (1948) 76 CLR 501; MacPherson V R (1981) 147 CLR 512;R v Dolan (1992) 58 SASR 501 applied. DISCRETION TO EXCLUDER v Ireland (1979) 126 CLR 321;Bunning v Cross (1978) 141 CLR 54;R v Foster (1993) 66 A Crim R 112;R v Warner 48 SASR 125 and Dennis v R (unreported CCA 8/12/93) Judgment S4326 referred to.

Materials Considered

• Summary Offences Act 1953 79A, referred to.

Representation

Director Of Public Prosecutions R:
Counsel: Mr. J.C. Wells - Solicitors: Director of Public Prosecutions

Defendant STEVEN RONALD LINDFIELD:
Counsel: MR W R RETALIC - Solicitors: SUSAN L. ABBOTT

DCCRM-96-62

Judgment No. D3643

11 July 1997

(Criminal)

R V LINDFIELD

Criminal

Judge Pirone

The defendant stands charged with one count of possessing methylamphetamine for sale.Particulars of that offence are that he, on the fourth day of August 1995, at Edwardstown, knowingly had methylamphetamine, a drug of dependence, in his possession for the purpose of selling it to another person.

The defendant has pleaded not guilty to the offence as charged. His trial was due to start before judge and jury on 8 July 1997.In accordance with the rules of court, the defendant has filed an application seeking certain orders. A voir dire was conducted for that purpose.On that voir dire the defendant has been represented by Mr Retalic of counsel.

At the commencement of the proceedings Mr Retalic indicated that the only order which was still being sought by the defendant was that which had been described in the application in these words, namely:

"That there be excluded from evidence conversations had with the applicant by the police."

The grounds upon which the defendant relied in support of that order were particularised as follows.

"The applicant was in custody as a result of a police raid upon his premises. He was not then, nor at any subsequent time, advised of his rights pursuant to section 79A of the Summary Offences Act 1953, nor was he cautioned at any time during the police raid.As a result of information received by police prior to the raid, police entertained a reasonable suspicion that the applicant had committed offences, which offences he was questioned about".

The record of interview which the defendant seeks to have excluded, of course, is that which is contained in the declaration of police officer Marwood and which is dated 31 August 1995.

The application of the defendant has been opposed by the Crown. The Crown has been represented by Mr Wells of counsel. I have heard full argument and I have considered lengthy submissions for and in opposition to the application of the defendant.

Having reflected upon the matter overnight, after hearing evidence that the parties have seen fit to submit for my consideration, the arguments and submissions of counsel and the cases to which I was referred, I have now come to a firm conclusion as to the orders that I should make. I propose to make those orders and give some reasons for them; however I reserve for myself the right to expand upon those reasons and to make appropriate further findings of fact should it become necessary, for whatever reason, for me to do so at some later stage.

The background to the matter may be briefly summarised as follows.On the fourth day of August 1995 a number of police officers attended at a property known as 6 HMS Buffalo Avenue, Edwardstown.Senior Constable Marwood was one of them.The property in question was occupied by the defendant and his wife. Mrs Lindfield however was at work at that time.The defendant, on the other hand, was at home. One of his friends, named Millard, was with him.He had been working on a motor car on the property.

It would appear that a jeweller's store in the Target Plaza Shopping Centre had been broken into during the night before the police attendance and certain items had been stolen. The purpose of the police attending at the premises of the defendant on the day in question was to search for the presence of those stolen items.They were in possession of a general search warrant for that purpose.

The police call on the door of the house of the defendant was answered by the defendant personally.He was spoken to. He was shown the search warrant.The police entered the house with his permission and searched the premises as authorised by the warrant.Millard, at that time, was in the toilet.Marwood waited for him and, upon coming out, he asked him if he could be present whilst the police searched the lounge.He did so.I accept that the purpose of ensuring his presence within the lounge was to protect the interests of the householder and the integrity of the search. I am satisfied that he could do whatever he wanted and that he was free to come and go as he wished.At one stage he advised the police that he did not live at the address, that he was working on a car in the yard and asked whether he could go about his business. He was told that he was free to do just that and eventually he left the premises without seeking anyone's permission.

In the course of searching the premises, the police found, amongst other things, a quantity of small snap-seal type money bags, a red plastic bag containing a liquor box and a set of scales with one brass bowl and a silver coloured bowl.There were traces of white powder on one of the bowls.

Marwood conferred with the other officers at the scene and then had a conversation with the defendant.That conversation and what happened soon afterwards is recorded at p.14 of the transcript as follows.

"Q. Could you tell his Honour that conversation.

A. I said 'I have just found a set of scales in the bread bin. What are they for?'

He said 'My wife's.She uses them for cooking.'

I said 'What is the white powder in the scale bowl?' He said 'I don't know.'

I said We can get it analysed and can call a drug dog if we need to.'

He said 'All right, I got some speed.I will get it for you.'"

The police officer was asked

"Q. Then what did Mr Lindfield do" and his answer was

"A. He then went into the laundry which almost backed on to the kitchen, and went around behind a pile of washing and a laundry trough and produced a length of white plastic pipe."

The white plastic pipe was opened.The evidence continued as follows.

"Q. What's contained inside there.

A. At present, there's a plastic bag containing some small money bags.

Q. Was that present when Mr Lindfield opened it.

A. Yes, and some wads of crushed up newspaper.

Q. They were there also.

A. Yes.

Q. And also there was -

A. Yes, a brown paper bag at the bottom.

Q. I think you've told us, a bag of white powder.

A. Yes.

Q. Did you have any conversation with Mr Lindfield while the pipe was being opened.

A. No.

Q. Could you describe Mr Lindfield's demeanour at this point in time, from when you were in the kitchen and you asked him about the scales, to this time when he produced the pipe and it was opened.

A. Mr Lindfield's demeanour didn't change all the time we were there.He was very polite, very agreeable, very calm and quiet.

Q. Was he co-operative.

A. Yes, very, yes."

Police officer Marwood had a further conversation with the defendant.That conversation was as follows.

"Q. Please tell the court the conversation.

A. Certainly.

I said 'Do you deal this?'

He said 'Yes'.

I said 'Where?'

He said 'At the pub'.

I said 'How much speed is there here?'

He said 'Three ounces'.

I said 'What size deals do you sell?'

He said 'Just halves'."

The defendant was cautioned at that point.The conversation continued.The defendant answered all questions as put.He did not, at any time, indicate that he wished to exercise his right not to answer any further questions, even though he knew of that right.

It was the contention of the defendant on the hearing of the voir dire that the record of interview should not be led in evidence either, because it is inadmissible, as a matter of law, or alternatively because it should be excluded in the exercise of the discretion of the court.

Differently expressed, as I understood Mr Retalic's submission, the confessional statements which are said to have been made by the defendant should not be led in evidence because they were not made voluntarily, in a legal sense, and/or because they were made at a time, firstly, when he was in a de facto custody, by reason whereof he should have been, but was not, advised of his rights under section 79A of the Summary Offences Act 1953 and, secondly, because he should have been given but was not given the relevant caution at an appropriate time.

I propose to deal with each of those matters in turn.

It is the law, as I understand it, that no statement which is said to have been made by an defendant person out of court is admissible in evidence against him upon his trial unless that statement is shown by the prosecution to have been made voluntarily, in the sense that it has not been obtained from him either by fear of prejudice or by hope of advantage exercised or held out by a person in authority.

I take the law on the topic to be as laid down in McDermott v R (1948) 76 C.L.R. 501 as subsequently approved in MacPherson v R (1981) 147 CLR 512.In McDermott's case Dixon J as he then was said this at page 511:

"At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown by the prosecution to have been voluntarily made.This means substantially that it has been made in the exercise of his free choice.If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne.If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure,it cannot be voluntary".

The evidence that I have heard leaves me in no doubt whatsoever that the defendant was not overborne.I am satisfied that what he said to the police was not the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure.The defendant, as I understood Mr Retalic, does not contend otherwise but says that his statement is nevertheless legally inadmissible for another reason.For that contention, the defendant relies on what fell from King CJ in the case of R v Dolan (1992) 58 SASR 501 particularly at page 505 when his Honour was dealing with the topic of cautioning and the consequences of failing to caution a suspect who is under arrest or who is otherwise in custody and is about to be questioned.What the learned Chief Justice said in this case was interalia as follows:

"The questioning of a suspect who is under arrest or who is otherwise in custody, tends naturally to the conclusion that he is not acting in the exercise of free choice in answering the questions.In such circumstances the caution is virtually an indispensable condition of the admissibility of the answers.The need for the caution is almost as compelling where, although the arrest has not actually been made, the police officer has decided to make the arrest. There are many cases which have insisted on the need for caution in these circumstances".

A bit further down the page at page 505 his Honour said:

"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 the 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 of his right not to answer questions.This is particularly so where the police officer is about to embark upon a systematic interview issuing in 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".

The defendant in the case at bar does not dispute that he was cautioned as and when the police say he was, but says that he should have been cautioned much earlier than he was. I accept that submission.

The test for determining the stage at which the caution should be administered is whether the police have sufficient evidence to found a reasonable suspicion that the suspect has committed the offence which they are investigating, and therefore sufficient evidence to justify his arrest.At that point the investigation passes from the investigatory stage to the accusatory stage.The questioning of the suspect beyond that point can only be designed to strengthen the evidentiary basis for the charge of which the police officers then have evidence.My view on the facts of the case before me is that an appropriate caution should have been given to the defendant not later than immediately before the point at which the defendant was asked 'Do you deal this?' and he responded 'Yes'. I have borne this factor firmly in mind before reaching my final conclusion, remembering also however, as I must, as King CJ himself said in page 505 in Dolan's case to which I have already referred that

"the omission of the caution in circumstances in which it ought to be given is not decisive as to voluntariness of the confession nor of the fairness of admitting evidence of it".

His Honour concluded by saying that

"the judge must decide those issues by taking all relevant circumstances into account, including the omission to administer the caution".

I have done just that in this case.

It was common ground between the parties, as I have already noted, that the purpose for the police attending at the premises of the defendant on the day in question was to search for the presence of suspected stolen goods.It was not their purpose to investigate a possible breach of the Controlled Substances Act.In the circumstances, therefore, and given that the focus of their investigations had changed, it was arguably incumbent upon the police, in fairness to the defendant, to advise him of that fact so that he could make an informed decision on what he should do or say.That was not done and, although the defendant did not make much of it, that is nevertheless something to which I should have regard in the exercise of my discretion.

There is authority for that proposition.I refer in particular to the decision of my brother Judge Wilson in R v Gillen 150 LSJS 482 and the cases referred therein, especially the case of R v Szach 23 S.A.S.R. 504 on which his Honour relied, and to which I was referred by Mr Retalic in relation to another matter.I accept, with respect, that the law is as it was stated and as it was applied by his Honour in that case but, in my view, that case is distinguishable from the case at bar for a number of reasons. One of them is that in his Honour's own words as they appear at page 485

"the accused was misled and came to be labouring under a false impression.The false impression originated from what the police had said and done.It could easily have been removed by expressly appraising him of the charge in contemplation".

In the case at bar there is no evidence that the defendant was, in fact, misled in any way, or that he was labouring under any false impression.To the extent that I understood Mr Retalic to suggest otherwise, and I don't think he did, I reject counsel's submissions to that effect.

The primary submission of Mr Retalic on behalf of the defendant was that at all material times the defendant was in a de facto custody and, further, that because of that, the statements said to have been made by the defendant to the police were legally inadmissible on the ground that the police had not complied with the provisions of section 79A of the Summary Offences Act.I was referred to various authorities on that topic.Mr Retalic took me step by step through every one of them.I am indebted to him for his assistance. I have carefully considered all of the authorities to which I was referred, but I do not consider it to be necessary for me at this stage to specifically mention each of them.

The leading case on that topic of course is R v Conley (1982) 30 S.A.S.R. 226.

His Honour the Chief Justice said this at pages 239-240:

"A person is apprehended for the purpose of [the Summary Offences Act 1953] when he is deprived of his liberty by a police officer irrespective of whether formal words of arrest are used. Frequently a police officer invites or requests a suspect to accompany him to a police station or to some other place for the purpose of pursuing police inquiries and the suspect voluntarily complies.Such an invitation or request does not amount to deprivation of liberty" -

His Honour quotes authority and continues -

"even though the police officer would have made an arrest if the suspect had not complied and even though the suspect believed that that would be the result of non-compliance. If, however, the circumstances are such that the words uttered, although in form an invitation or request, would in the circumstances convey to a reasonable person that he had no genuine choice as to whether to accompany the police officer, it becomes incumbent upon the police officer to make it clear that the suspect is not under arrest and is free to refuse to accompany him and, in the absence of such an intimation, the apparent invitation or request may constitute an apprehension."

I also refer to his Honour's remarks in R v Lavery (1978) 19 S.A.S.R. 515 to which I was referred by Mr Retalic. At page 516 of the report his Honour said:

"A suspect may, voluntarily and without constraint, accede to a police officer's request to accompany him, and if he does so, there is of course no interference with his liberty. This is so even if he goes reluctantly out of respect for authority or fear that a refusal will be construed as an indication of guilt or some other similar motive.The suspect's liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer".

Two other cases to which Mr Retalic referred me are R v Leecroft (1987) 46 SASR
250 and R v S. and J. (1983) 32 S.A.S.R. 174.Each of them is a decision of the late White J.In Leecroft's case his Honour was concerned with the meaning of the word "apprehended".He held that for the purposes of section 79A of the Summary Offences Act 1953 the word "apprehended" means "taken into actual or de facto custody".

What His Honour said at pages 252-253 was this:

".... the words of section 79a (sic) are plain and unambiguous.The word 'apprehended' is not a single word requiring interpretation but stands in the context of such sentences as 'where a person is apprehended by a member of the police force', 'where he is apprehended on suspicion of having committed an offence', and so on.Further, such sentences appear in the wider context of a section which sets out the right of such a person 'while in custody' or 'while he remains in custody'.In other words, the person so 'apprehended' is 'in custody'. The words 'in custody' would have to receive the same loose meaning as 'apprehended' if I accepted the argument put forward. Finally, I observe that s 79a (sic) and surrounding sections replaced similar sections in the former Police Offences Act 1953 which also used the words 'apprehended' and 'in custody' as meaning actual or de facto custody".

His Honour continued

"The dividing line between being 'apprehended' and taken 'in custody', and 'not being apprehended' and 'not in custody', is well recognised, even though the factual situations in particular cases may call for close examination and at times cause difficulty.

It is quite clear that s 79a (sic) of the Summary Offences Act 1953 and the other new surrounding sections are designed to regulate the rights of individuals and the rights and duties of members of the police force only in those circumstances where the individuals have been apprehended and taken into actual or de facto custody within the meaning of those cases.All other individuals spoken to by the police are free to exercise their rights to remain and speak to the police or to walk away without reply, or to confer with their relatives, friends or interpreters.If the individual's freedom to leave or to act as he wishes is interfered with in any relevant way, he is in the de facto custody of the police and the s 79a (sic) rights apply.If not, he is free and does not need the statutory protections."

In the case of R v S and J his Honour quoted and applied the passage from Conley's case, to which I have already referred. His Honour then contemplated what should be done in a case where the circumstances were such as to create a substantial ambiguity in the mind of a reasonable person as to his position. His Honour answered the question in these words:

"There are two things which the police officers must do once the substantial ambiguity arises in the mind of a reasonable person: first, they must inform the suspect that he is not under arrest; and second, they must also inform [the suspect] that he is free to refuse to accompany them, that is, that he is free to go.The negative requirement was fulfilled on several different occasions by repeating from time to time the formula 'you are not under arrest'. However, at no stage was either youth told that he was free not to comply with any such requests, indeed free to go."

That, says Mr Retalic, is indeed what happened and what should have been done in the case at bar.For the sake of completeness, I also add a reference to the case of R v Easton 144 LSJS 107 where White J quoted with approval a dictum of Sangster J in the unreported case of Callisto, Dawson and Violi delivered on 30 July 1991 where his Honour said:

"In my opinion, the time has come when any court is justified in treating as prima facie evidence of arrest, any so-called invitation by a police officer to a suspect to accompany the officer to the police station.Unless that invitation is accompanied by two clear statements,first that the invitee need not go to the police station unless he wishes to do so and second that if he does voluntarily go to the police station he will be free to leave it whenever he wishes to leave unless and until he is arrested and told in so many words that he is arrested."

Mr Retalic argued that the degree of de facto control over the defendant's freedom of movement, in the case at bar, should lead either to a clear and unambiguous inference of de facto arrest or, at the very least, to a substantial ambiguity as to whether the defendant was under a de facto arrest. That ambiguity gave rise to an onus on the part of the police officer concerned, to disabuse the defendant's mind about his position.Furthermore, says Mr Retalic, that ambiguity should have been resolved by the police in an unambiguous way such as, for example, by adopting or by following the procedures suggested by White J in the cases to which I have referred.None of that, says Mr Retalic, had been done in the case at bar, and the record of the interview should therefore be excluded for that reason.

The test for determining whether a de facto arrest situation exists, says Mr Retalic, is whether the prevailing circumstances at the relevant time are such as to convey to a reasonable person, the notion that he has no genuine choice to come and go as he likes.

With the greatest respect to Mr Retalic, I do not agree that that is the test. The proper test, in my judgment, was formulated in clear unambiguous and express terms by King CJ in R v Webb and Hay (1992) 168 LSJS 256 at 261 in these words:

"The test is whether the actions of the police would have induced a reasonable person in the position of Webb and did in fact induce Webb to suppose that he was not free to leave".(My emphasis).

That test was applied by Matheson J, at first instance, in R v Schutze and Cornelius (1994) 76 A Crim R324.The case went on appeal.The appeal is reported in 179 LSJS 418. The same test was quoted, with approval, and was applied by the Court of Criminal Appeal on the hearing of that appeal. Applying that test as I must, I reject the contention that the test is strictly objective but add that, in my view, the test is not strictly subjective either. The words used by his Honour indicate to me that the relevant test is what may be described as a hybrid objective subjective test, in the sense that what is necessary to have regard to is not only the effect that the actions of the police would have had on a reasonable person in the circumstances of the defendant, but more to the point for present purposes, whether those actions, in fact, had the alleged effect on the defendant himself.I agree with counsel for the Crown, therefore, that in determining the question of whether the defendant was in a de facto custody situation, the state of mind of the defendant at the relevant time is of importance.I note that it was so regarded by Cox J in the case of R v Sharp (1983) 33 SASR 366.Before quoting from that case, I find as it is common ground that the defendant was at no time formally arrested.

I further find that the police, for reasons which they gave and which I accept, had no intention of and no need for, arresting the defendant.I reject the suggestion that the police had a hidden agenda and might not have effected an arrest on the defendant, only to avoid the consequence of having to give him the section 79ASummary Offences Act 1953 rights.I am satisfied that the defendant was, in fact, free to go as he wished.

The question therefore, is whether, in the circumstances, he himself believed that he really had no choice but to stay within the house as he did.At this point, it is worthwhile to note, at least in passing, that the house in question was the defendant's place of abode, that he had accepted the request of the police to remain within the house whilst the search was being conducted, that he had no desire to leave it at any time, or for any purpose, and in any event, that there is no evidence before me of any suggestion that he had anywhere else to go to.

Be that as it may, I now return to the question of the defendant's belief.In Sharp's case, his Honour referred to the case of R v Byczko and McCloud (1992) 30 SASR 578 and said inter alia as follows:

"It is necessary to bear in mind that, the voluntariness of the admissions having been proved, it is for the accused to establish the facts upon which he wishes the Court to exercise its discretionary power to exclude the admissions. I have found that the accused was not arrested and was free to go on his way. It is possible, however, that he believed, like Byczko, that he had been arrested or that he believed, for some other reason, that he had no choice in the matter.That, as it seemed to a majority of the Full Court, was Byczko's situation.It is also possible that the accused was under no misapprehension at all.He may, for all I know, be an old hand at this kind of thing, with a knowledge of the powers of the police to search for weapons and an adequate appreciation of a practice by police officers of distinguishing, in their words and actions, between arresting a man and, on the other hand, inviting him to go to a police station for questioning".

A bit further down, his Honour said,

"On an issue on which the accused carries the burden of proof and in which the reasonable possibilities go both ways, I do not see why I should draw inferences favourable to the accused which he has declined to support for himself in the witness box."

Yet further down, his Honour says:

"Where it is a matter of an accused person's state of mind, and the circumstantial evidence on that subject is by no means conclusive, the failure of the accused to give evidence about it may be important."

His Honour considered it to be so in that case and ruled accordingly.

The defendant, in the case at bar, accepts that it is for him to persuade me, to the appropriate degree, that at the relevant time he was in a de facto arrest type of situation. Mr Retalic says that I should find that he has done so.He maintains that position, notwithstanding that the defendant has chosen, as it was his right, not to give evidence. The argument as I understood it, is based on a number of propositions, some of which may be summarised as follows:

1. There is a volume of circumstantial evidence before me which the defendant either accepts, or does not dispute.

2. That circumstantial evidence discloses that before the defendant was cautioned by the police, the police were in possession of incontrovertible evidence, demonstrating beyond reasonable doubt that the defendant was guilty, at the very least, of the offence of possessing a prohibited substance.

3. Any reasonable person placed in those circumstances would know and understand that he would be answerable for the inevitable consequence, and that he would be reported and or charged with an offence, and a serious one at that.

4. It is inconceivable to think that a reasonable person placed in that situation would have any belief, other than that if he had not already, in fact, been arrested, he would not be free to come and go as he pleased, and that his freedom of movement was therefore restricted, thereby being in a de facto arrest type of situation.

5. At the very least, the stated circumstances would be such as to create a substantial ambiguity in the state of mind of a reasonable man calling for an unambiguous clarification on the part of the police.

Mr Retalic argued forcefully and with conviction.He left no stone unturned. His submissions have sufficient superficial attraction to be accepted and acted upon but, in my judgment, there is authority which is binding upon him, and which prevents me from adopting the course which he urged me to take.I must apply the test that was formulated by the Court of Criminal Appeal in R v Webb and Hay, and which was accepted and applied by a partially differently constituted Court of Criminal Appeal in the more recent case of R v Schutze and Cornelius.I note in passing that the presiding Chief Justice was the same on each occasion. Applying that test, I must consider not only whether the actions of the police would have induced a reasonable person in the position of the defendant to suppose that he was not free to leave, but more to the point, whether the defendant himself was, in fact, induced by those actions to suppose that that was so.

The defendant has elected not to give evidence, as I have already noted.It was his right to do so.I draw no inference whatsoever adverse to him on that basis.The result of not giving evidence, however, is that there is no credible evidence before me on which I could confidently rely, for the purpose of finding that, at the relevant time, he himself supposed that he was not free to go.The words of Cox J which I have quoted in the case of R v Sharp, in my opinion, are opposite to the case at bar.I adopt them as my own.

I am not prepared, in the circumstances, to draw the inference that the defendant urges me to draw.I am not persuaded, to the appropriate degree, that at the relevant time he was in a de facto custody situation.My specific finding is that he was not, and that the police are not in breach of their statutory obligations to give him his section 79ASummary Offences Act 1953 rights.

Notwithstanding the findings that I have just made, Mr Retalic says that the record of interview should still be excluded, in the exercise of the discretion of the court. He advanced various arguments in support of that submission. One of them was that the defendant had ingested amphetamine and had consumed alcohol, to such an extent as to make his answers to the police questions unreliable.Mr Retalic pointed to the record of interview and referred me to various answers which are either inaccurate and or inconsistent, or obviously totally untrue in the light of other evidence.I accept that that is so, but I am not satisfied that the defendant was intoxicated by drug and or by alcohol to the claimed extent.

I have no confidence in the evidence which Mr Millard gave on that topic and I have concluded that, because of her absence from the scene at the relevant time, the evidence of Mrs Lindfield does not really assist me.

On the other hand, I have no reason not to accept the evidence of the police officers on that topic.My conclusion, as I find at the end of the day, is that any inconsistency and or unreliability in the defendant's answers is unconnected with either the presence or the actions of the police, or with his intake of alcohol and or of drugs.

Another ground relied on by Mr Retalic was the lateness in the administration of the caution.The police concede that, on reflection, the caution was administered later than it should have been.The Crown does not contend otherwise. I have already referred to this topic.I merely add this; the courts take the opportunity, whenever possible, of stressing, as I now do yet again, the necessity for the police to administer the caution when the accusatory stage of their investigations has been reached, and further, that that can only be done by rejecting questions and answers, which have been elicited by questions put by the police to the defendant, after the accusatory stage has been reached.

At this point, it may be appropriate, for the benefit of those officers who were concerned in the case at bar and for others generally, to be reminded of what Stephen J and Aickin J said in the High Court case of Bunning v Cross
(1978) 141 C.L.R. 54.What their Honours said at p.77 was this:

"The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesome and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm.This would not be excusable however desirable might be the immediate end in view; that of convicting the guilty. In appropriate cases it may be 'a less evil that some criminals should escape than that the Government should play an ignoble part'."

Those words are true with stronger reasons in 1997.

Finally, for the same purpose and with the same objective in mind, I add a reference to an unreported decision of Mitchell J, as she then was, handed down on 25 October 1974, in the case of R v Dodd, Milera and Bingapore, which was quoted, with approval, by Bray CJ in the case of R v Stafford 13 S.A.S.R. 392 at 402.What Her Honour said was this:

"In my view the Courts should set their faces firmly against the admission of evidence illegally obtained.There may be circumstances in which the illegality is so slight that it can well be overlooked and the evidence admitted.I do not think that this is one of these cases and I propose to exercise my discretion to exclude that evidence."

The officers concerned and others would do well to remember those words and that ruling.Having said that, however, I must now add that I see no reason to think that the police officers, in the case, at bar, were not acting bona fide or that they had failed to administer the caution at the stage which they considered they were required to administer.I bear particularly in mind the candidly admitted inexperience of Constable Marwood at that time.

My conclusion is that I do not think that there is any public policy aspect to the decision in this case.It still remains to consider, however, whether the questions and answers which followed the point at which the caution ought to have been administered should be excluded by reason of unfairness to the defendant.That argument is normally based on a submission supported by evidence that if the defendant had been given the caution he would not have answered the police questions.Such, for example, was the case in Dolan.The same submission could not and was not made in this case, firstly, because the defendant, of course, elected not to give evidence in any event and also because the defendant, in fact, continued to answer questions even after he was cautioned. That, however, says Mr Retalic, is of absolute no consequence.

Indeed, in his own words, "the horse had well and truly bolted by that time and therefore there was nothing for the accused to gain by remaining silent".Mr Retalic relied on R v Warner 48 SASR 125 as authority for the proposition that the whole record of interview should be excluded.

Mr Wells, on the other hand, contended for the contrary proposition and urged me to admit the whole of the record by relying on Dennis v R, an unreported decision of the Court of Criminal Appeal handed down on 8 December 1993, it being judgment number S 4326.

I have carefully considered everything that has been put to me by each of Mr Retalic and Mr Wells.In the absence of any evidence from the defendant to the contrary, I have come to the conclusion that his demeanour in the course of the events of the day in question, as deposed to by the police, which he did not dispute and which I accept, showed every indication that he was only too willing to co-operate with them and to tell them all that they wanted to know. My conclusion is that he answered all questions fully and freely both before and after the caution.He was quite free in his incriminating answers at all times.

On the whole of the evidence before me, I am satisfied, as I find, that if the caution had been administered, at the time at which it should have been given the defendant would, nevertheless, have given the answers which he, in fact, gave.In my judgment, the defendant has suffered no unfairness as a result of the failure by the police to administer the caution.I reject any contention to the contrary.

On the authorities to which I have referred and after carefully considering the material before me and the submissions of counsel, I have reached the conclusion that the confessional statements of the defendant were voluntarily made and for that reason, therefore, that they are legally admissible.

My further conclusion is that at the relevant time, the defendant was not in lawful custody nor was he in a defacto custody and, accordingly, therefore, he was not entitled to be given and the police are not at fault for not giving him the section 79ASummary Offences Act 1953 rights.In the event, that contrary to my expressed view, it should be held elsewhere that when the defendant was spoken to by the police he was under defacto arrest or that an appropriate caution should have been given earlier than I have found that it was, in fact, given, or that he should have been given section 79A rights, I have asked myself the question as to how I would exercise any of the various discretions which the law reposes in me at this time.In answering this question, I have directed myself on the law as laid down and as it was discussed inter alia in R v Ireland (1979) 126 CLR 321; Bunning & Cross (1978) 141 CLR 54 and in other cases dealing with the topic.

I have also been guided by what the High Court said in R v Foster (1993) 66 A Crim R 112 especially at pp.117-118.After reflecting on the matter and after considering the submissions of counsel and the material before me, I have concluded that there is an insufficient basis for saying that the discretion of the court should be exercised in favour of the defendant or that the case is one justifying the exclusion of the challenged evidentiary material on any basis. I exercise my discretion against the defendant.

Before leaving this case there are two further matters to which I wish to refer.One of them is this: the voir dire has taken three days and although the facts were straightforward, the questions to be resolved, in my view, are complex ones.I was greatly assisted by the submissions of counsel and, in particular, by the manner in which the case was presented and argued by each of them and by the authorities to which I was referred.Mr Retalic, in particular, said everything that could possibly be said in support of his client's case.He said it well.He said it forcefully and with conviction. It is with some regret that at the end of the day, I have found myself unable to accede to his request to make the orders which he wished me to make.

The other matter I wish to refer to in fairness to counsel and lest it should be thought that I have overlooked them is this.Various points have been argued by counsel and submissions have been made in relation to each of them. I have considered all ofthem but I have not found it necessary to deal individually with each of them or to specifically canvass each of them in greater detail than I have.I have recounted only some of the arguments and submissions and I have some merely by way of examples. When any point made by counsel has not been specifically mentioned by me in these reasons it must be taken that I have reached the conclusion, after fully considering it, that there was no substance in it.

There will be a ruling in terms of my reasons as given.