R v MACKLIN - [2008] SASC 319

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MACKLIN
[2008] SASC 319
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
20 November 2008
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE
Appellant convicted by verdicts of jury of four counts of unlawful sexual intercourse - appellant admitted to acts of fellatio in record of interview conducted by police - police gave appellant appropriate warnings and arrest rights and told appellant nature of charges at beginning of interview - whether police should have explained to appellant that fellatio amounted to sexual intercourse - whether trial judge erred in not excluding record of interview from evidence.
Held: Appeal dismissed - no obligation upon police to define meaning of sexual intercourse - trial judge did not err in not excluding record of interview from evidence.
Criminal Law Consolidation Act 1935 (SA) s 5, s 49(3); Criminal Law Consolidation Act Amendment Act 1985 (SA) s 3; Criminal Law Consolidation (Sexual Intercourse) Amendment Act 1994 (SA) s 3, referred to.
R v Fieldhouse (1977) 17 SASR 92; R v Hart, Bullock, Peterson and Hill (1977) 17 SASR 100, discussed.

R v MACKLIN
[2008] SASC 319
Court of Criminal Appeal: Gray, Sulan and David JJ
GRAY J.

I would dismiss this appeal. I agree with the reasons of David J. I do not wish to add to those reasons.
SULAN J. I agree with David J.
DAVID J. The appellant was convicted by verdicts of a jury of four counts of unlawful sexual intercourse with a female who was aged between 13 and 14 years, contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (SA). The offences were alleged to have occurred between September 2001 and August 2002. The four counts on which he was convicted were all acts of fellatio. He was charged with four other counts of unlawful sexual intercourse with the same underage female, but was acquitted on those counts.
The present appeal is only concerned with one ground. The appellant argues that the trial judge erred in not exercising his discretion to exclude a record of interview conducted by police at the Holden Hill Police Station on 6 December 2006. In that record of interview the appellant admitted to three distinct acts of fellatio. Although given all the appropriate warnings by the interviewing police officers, he argues that it should have been explained to him that fellatio, in law, amounted to sexual intercourse. The appellant argues that there was unfairness. The argument proceeds on the basis that it could be inferred that, if given this information, he may have desisted from answering questions and admitting to the acts of fellatio.
That argument was put to the trial judge and he was asked to exercise his discretion to exclude the record of interview. He declined. The appellant did not give evidence, either on the voir dire hearing or at trial. I turn to the record of interview.
Record of Interview
It is clear from the record of interview and the statement of Mr Brian Savins (dated 26 February 2008) that police requested the appellant attend the Holden Hill Police Station concerning allegations of sexual misconduct. An appointment was made and the appellant duly attended at the Holden Hill Police Station. He was placed under arrest and told it was in relation to offences which included nine counts of unlawful sexual intercourse and one count of rape. He was then given all the appropriate rights that must be given to an arrested person, including the right to refrain from answering questions, and advised of the fact that what was said could be used in evidence. Early in the interview, the interviewing police officer said:
Q.Yep I can give you the allegations and whether you want to answer any of my questions
A.Yeah you can might as well
Q.Ok um its in relation to [the victim] um who states that she met you in about June or July in 2000.
Allegations of fellatio were then put to the appellant. During the interview the appellant admitted to three counts of fellatio. In relation to those three occasions, he was asked this question:
Q.Alright and on each of those 3 occasions your [sic] saying that you didn’t have sexual intercourse with
A.I never actually I’ve never actually had sexual intercourse with her ever well I couldn’t have at the time you know the idea was there but I was you just too you know scared.
He also said:
A.Well uh well cause I was just scared cause I knew vaguely I was doing the wrong thing but um I was just you know the nerves got me and theres no way you know I could do it and sort of had trouble anything like that for a long while cause I’m on that many tablets and things with you know for my heart attack and stroke.
The appellant’s three admissions to acts of fellatio were clearly important, because on the present law, which since 1985 has had an expanded definition of sexual intercourse,[1] his conduct amounted to sexual intercourse with an underage female, contrary to s 49(3) of the Criminal Law Consolidation Act.
[1] Criminal Law Consolidation Act 1935 (SA) s 5, amended by Criminal Law Consolidation Act Amendment Act 1985 (SA) s 3 and Criminal Law Consolidation (Sexual Intercourse) Amendment Act 1994 (SA) s 3.
Arguments on Appeal
Mr Algie, for the appellant, now argues that the clear ignorance shown by the appellant in the record of interview as to the fact that fellatio amounted to sexual intercourse is something that should have been explained and corrected by the police. He argues that the unfairness is that there is a clear inference that if the appellant thought it was unlawful sexual intercourse, as distinct from what was formerly indecent assault, he may not have answered any questions. In presenting the argument, he relied upon the decisions of White AJ in R v Hart, Bullock, Peterson and Hill[2] and R v Fieldhouse.[3] In both of those decisions, White AJ as trial judge, excluded answers given by accused in interviews by police officers because of unfairness due to misinformation.
[2] R v Hart, Bullock, Peterson and Hill (1977) 17 SASR 100.
[3] R v Fieldhouse (1977) 17 SASR 92.
In R v Hart, Bullock, Peterson and Hill,[4] the female defendant Hill was charged with rape. When spoken to by police about an assault upon the victim, she was not informed of the possibility of being charged with the more serious offence of rape and the admissions she made were made in a state of ignorance as to the nature of the charges.
[4] R v Hart, Bullock, Peterson and Hill (1977) 17 SASR 100.
In R v Fieldhouse[5] the defendant had shot his brother. When asked questions by police about what had happened, and before he was told his brother had died and the police were investigating a murder, he made a number of admissions. The police had known about the death before questioning him.
[5] R v Fieldhouse (1977) 17 SASR 92.
In my view, the present case is different. It is clear that the appellant knew very early in the interview that he was charged with engaging in sexual conduct with an underage female. Almost immediately after being given his rights, he was told that he was placed under arrest for nine counts of unlawful sexual intercourse and one count of rape. He was also told very early in the interview the name of his victim and that allegations related to acts of fellatio. The appellant then proceeded to make admissions to three counts of fellatio. Irrespective of how he considered the law regarding fellatio, whether it is indecent assault or unlawful sexual intercourse, the fact is that he made admissions to very serious criminal sexual misconduct with an underage female. The police officers gave the appellant all the appropriate warnings and told him the nature of the charges. There was no obligation upon them to define exactly what was meant by sexual intercourse. In any event, not doing so did not amount to trickery leading to unfairness and resulting in unguarded or unreliable admissions. In my view, the trial judge did not err in declining to exercise his discretion to exclude the record of interview from evidence.
I would dismiss the appeal.