R v McCarthy - [2017] SASC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v MCCARTHY
[2017] SASC 36
Reasons for Ruling of The Honourable Justice Nicholson
20 March 2017
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY
The applicant, Mr McCarthy was charged with murder. Following a trial before a jury which commenced 4 October 2016, Mr McCarthy was acquitted of murder but convicted of manslaughter. Before the jury had been empanelled, the applicant sought to agitate an application for the exclusion of evidence that was in terms materially the same as one that had been considered by a different Judge at an earlier trial and rejected. The application fell to be considered within the framework and constraints now imposed by section 285AB of the Criminal Law Consolidation Act 1935.
Held: application refused. It had not been shown that it would not be in the interests of justice for the earlier Judge's ruling to be binding. Accordingly, section 285AB precluded the hearing of the application.
Supreme Court Criminal Rules 2014 r 49; Criminal Law Consolidation Act 1935 (SA) s 285AB; Summary Offenes Act 1953 (SA) s 79A, referred to.
R v McCarthy [2015] SASC 11; R v McCarthy [2015] SASCFC 177; R v Hein [2013] SASCFC 97; R v Finn (No 2) [2015] SADC 33; R v Keogh (No 2) [2014] SASCFC 136; Alqudsi v The Queen [2016] HCA 24; Kuru v State of New South Wales [2008] HCA 26, (2008) 236 CLR 1; R v Ireland (1970) 126 CLR 321; R v Polyukhovich unreported Supreme Court of South Australia, 22 December 1992, considered.

R v MCCARTHY
[2017] SASC 36
Criminal: Ruling
NICHOLSON J.
Introduction

The applicant, Mr Patrick McCarthy, was charged with murder. Following a trial before a Judge of this Court and jury which commenced on 10 November 2014, the applicant was found guilty of murder. A subsequent appeal to the Court of Criminal Appeal was successful and the murder conviction was quashed with an order for a re-trial. The conviction was quashed on grounds that did not relate to the subject matter of these reasons.
In October 2016, the applicant again presented for trial on the charge of murder before me and another jury. He was acquitted of murder but found guilty of manslaughter. Before the jury had been empanelled, the applicant sought to agitate an application for the exclusion of evidence the substance of which had been considered and rejected at the first trial. I refused to hear that application and made the following ruling.
As far as item 2 [on the applicant’s Rule 49 application dated 30 September 2016 relating to] (evidence of the applicant’s conversations with various police officers on the morning of 8 June 2012) is concerned:
(a)I do not consider that it would not be in the interests of justice for the two rulings or determinations, delivered by [the earlier Judge] on 18 November 2014, to be binding on me.
(b)As a consequence, and in accordance with section 285AB of the Criminal Law Consolidation Act 1935, these two rulings or determinations are binding such that there is no warrant for me to revisit them by way of conducting another voir dire or otherwise and I decline to do so.
(c)In the interests of clarity for the parties, the two rulings by [the earlier Judge] were in the following terms (Transcript of first trial p566):
The first application was to exclude the evidence of Senior Constables Milligan and Lyons concerning discussions occurring before 4.40 am and 5.17 am with [the applicant] or between [the applicant] and Mr Taverna. My ruling is that I decline to exclude that evidence.
The second application was that I exclude the evidence of the discussions between Detective Gaurd beginning at about 8.52 am, Detective Cullinan beginning at 9.20 am and Detectives Cullinan and Minchenburg beginning at 10.09 am. I decline to exclude that evidence ...
(d)[The earlier Judge] made some comments about these two rulings (Transcript of first trial pp566-567). Whilst these comments did not form part of the rulings that I have found to be binding, I draw the parties’ attention to those comments.
These are my reasons for so ruling.
At the commencement of the first trial in November 2014, the applicant applied, pursuant to rule 49 of the Supreme Court Criminal Rules for certain conversations said to have taken place between him and a number of police officers in the early morning of 8 June 2012 and very soon after the relevant incident, to be excluded. A voir dire was conducted by the trial Judge following which the application was refused. The Judge published his reasons for refusing the application after the completion of the trial (the initial voir dire judgment).[1]
[1] R v McCarthy [2015] SASC 11.
It was a ground of appeal following the first trial (appeal ground 8) that the trial miscarried as a result of the admission of the evidence of these conversations on the basis that the evidence operated unfairly against the applicant because the police had embarked on the conversations without cautioning the applicant in circumstances where a caution should have been given. That ground of appeal was unanimously dismissed.[2] The Court of Criminal Appeal went further than simply dismissing appeal ground 8 insofar as it alleged an improper failure to caution. Peek J (with whose reasons in this respect Kourakis CJ agreed) observed as follows.[3]
The Judge held a lengthy evidentiary voir dire hearing from 10 to 13 November 2014 concerning the admission of evidence of police questioning of the appellant and reserved judgment. On 3 February 2015 his Honour delivered a judgment of some 31 pages, and declined to exclude the evidence.[4] I consider that the many authorities his Honour cited, and the principles he applied, were entirely appropriate to this case. His Honour made comprehensive factual findings and these were open to him on the evidence. I detect no error in his Honour’s decision to admit the evidence. I would reject ground of appeal 8.
[2]    R v McCarthy [2015] SASCFC 177 at [143] (Gray J), [361] (Peek J with whose reasons in this respect Kourakis CJ at [1] agreed).
[3]    At [361] (Peek J), [1] (Kourakis CJ).
[4]    R v McCarthy [2015] SASC 11.
In addition, the Court of Criminal Appeal rejected appeal grounds 9, 9.1 and 9.2 to the effect that the trial Judge had erred in his directions as to the manner by which the jury might make use of certain lies by the applicant during those conversations.[5]
[5] R v McCarthy [2015] SASCFC 177 at [144]-[152] (Gray J) and [362] (Peek J with whose reasons Kourakis CJ at [1] agreed).
The re-trial commenced on 4 October 2016. Immediately prior to the jury being empanelled, the applicant sought to agitate a Rule 49 Application in terms materially the same as those that had been before the previous Judge. The Rule 49 Application before me was in these terms.
2.That all conversations between the Applicant and Police Officers at McAllan Avenue be excluded from being led at trial.
Grounds
2.1 The initial conversations between the Applicant and Constable Lyons and Senior Constable Milligan were not recorded in breach of section 74D of the Summary Offences Act at a time when police suspected an indictable offence had occurred and, in addition, the applicant was not cautioned.
2.2 The subsequent conversations between the Applicant and Detective Senior Constable Cullinan (in the presence of Detective Brevet Sergeant Gourd) and with Senior Constable Milligan on the grounds that the Applicant was a suspect for a serious offence and he was not cautioned as to the specific offence then being investigated.
[footnotes omitted]
This application, if it were to be heard, would have required a re-consideration of the original Rule 49 Application or at least of a substantial part of it. It would have required a re-hearing of the initial voir dire, including the hearing of evidence from various of the police witnesses who gave evidence before the first Judge. The initial voir dire occupied the best part of a number of days[6] and the police officers concerned and who would need to be called on the new application before me were examined and cross-examined over more than 150 pages of transcript. Detailed submissions by senior counsel for both the applicant and the prosecution were made.
Section 285AB of the Criminal Law Consolidation Act 1935
[6] The applicant’s Rule 49 Application extended over more than three days but other matters were dealt with during that period.
It was common ground between the parties that before embarking on a second voir dire in order to determine the Rule 49 Application brought by the applicant in the trial before me, I first had to be satisfied that such could be justified bearing in mind the terms of section 285AB of the Criminal Law Consolidation Act 1935. Section 285AB is in the following terms:
285AB—Determinations of court binding on trial judge
A determination or order made by a judge of the court in proceedings dealing with charges laid in an information is binding on a judge of the court presiding at the trial of the defendant, whether the trial is the first or a new trial following a stay of the proceedings, discontinuance of an earlier trial or an appeal, unless the trial judge considers that it would not be in the interests of justice for the determination or order to be binding or the determination or order is inconsistent with an order made on such an appeal.
In effect, the determination made by the Judge at the earlier trial as to the admissibility of the impugned conversations was binding on me subject to two exceptions.
(i)The determination was binding unless inconsistent with an order made on appeal. This was not the case here, indeed, the situation was to the contrary.
(ii)The determination was binding “unless the trial judge [considered] that it would not be in the interests of justice for [it] to be binding”.
The starting point is that I was bound by the previous determination unless the applicant (on whom the onus lay) satisfied me that it would not be in the interests of justice for it to be binding.
Insofar as I am aware, as yet the provision has been considered in only two cases.[7] In R v Hein,[8] it was not necessary for the Court of Criminal Appeal to consider the application of section 285AB to the facts before it. However, Vanstone J (with whose reasons Kelly J and (in this respect) Peek J agreed) offered the following guidance.[9]
Section 285AB envisages that (where there is a renewal of the application for exclusion) the second court will make an assessment of the material considered by the original judge, the issues raised and the original ruling. It will need to do so in order to answer the question whether it is not in the interests of justice for the orders to be binding. (Here the second judge did so and gave reasons for his decision.)
I do not consider that the absence of full reasons of itself would have justified disregard of the original judge’s findings. Particularly if the voir dire had turned only on the factual dispute relating to events prior to the recorded interview, then the bare statement that the judge rejected the appellant’s evidence would have been sufficient. In relation to the undisputed factual material – the interview – the second judge had available, not only the material itself, but the transcript of the voir dire before the original judge. He was in a position to make an assessment for himself of the interests of justice question.
With respect, I agree with this analysis.
[7] R v Hein [2013] SASCFC 97 and R v Finn(No 2) [2015] SADC 33. In the latter case, his Honour Judge Stretton of the District Court sought to apply the dicta of Vanstone J in R v Hein.
[8] [2013] SASCFC 97.
[9] At [34]-[35].
Given the circumstances of the present matter, I adopted the approach described by Vanstone J in order to determine the interests of justice question. I had before me the transcript of the initial voir dire, the exhibits that were before the earlier Judge which include (but are not limited to) the various declarations prepared by the police officers concerned and the Judge’s reasons for judgment. In addition, I had available to me written and oral submissions from senior counsel for the applicant (who was not the senior counsel at the first trial) and senior counsel for the prosecution (who was not the senior counsel at the first trial).
The reasons of the Judge
The content and nature of the conversations objected to and the circumstances in which they came about are set out in detail in the initial voir dire judgment. It is not necessary to repeat that material here. There was a series of conversations between Senior Constable Milligan and the applicant and Senior Constable Lyons[10] and the applicant, the exclusion of which was sought on the following grounds.[11]
[10] As at 8 June 2012 Senior Constable Lyons’ rank was that of Constable.
[11] R v McCarthy [2015] SASC 11 at [31].
Mr McCarthy sought the exclusion, in the exercise of the Court’s discretion, of the evidence of Senior Constable Milligan and Constable Lyons of their conversations with him on the following grounds:
1.the conversations followed and were a consequence of an unlawful entry onto the premises by the police officers;
2.no caution was given to Mr McCarthy in circumstances in which the police officers suspected on reasonable grounds that he had committed an assault or worse;
3.Mr McCarthy was not given any details of the offence or potential offence the police were investigating;
4.the police officers did not record in their notes the questions and answers but only a summary in narrative form of what they were told;
5.the police officers did not show their notes to Mr McCarthy for verification or comment as to their accuracy;
6.no videotape recording was made of the conversations in contravention of section 74D of the Summary Offences Act 1953 (SA) (the Act) in circumstances in which the police officers suspected, or had reasonable grounds to suspect, Mr McCarthy of having committed an indictable offence;
7.no information of rights or warning was given to Mr McCarthy in contravention of section 79A of the Act in circumstances in which he had been apprehended by Senior Constable Milligan.
[footnotes omitted]
In addition, there were conversations later in the morning with Detectives Gourd, Cullinan and Minchenberg, one of which (that with Detective Cullinan) was recorded on video. As it happened, only the video recorded conversation with Detective Cullinan was led at the first trial. Objection was taken before the Judge to these later conversations on the following grounds.[12]
Mr McCarthy sought the exclusion, in the exercise of the Court’s discretion, of the evidence of Detectives Gourd, Cullinan and Minchenberg of their conversations with him on the following grounds:
1.the conversations followed and were a consequence of an unlawful entry onto the premises by Senior Constable Milligan and Constable Lyons;
2.no adequate caution was given to Mr McCarthy in circumstances in which the detectives suspected on reasonable grounds that he had committed an assault or worse;
3.Mr McCarthy was not given any details of the offence or potential offence the police were investigating;
4.no information of rights or warning was given to Mr McCarthy in contravention of section 79A of the Act in circumstances in which he had been apprehended by the police.
[12] R v McCarthy [2015] SASC 11 at [112].
The Judge, in a lengthy judgment which, with respect, reflected a detailed and careful analysis of the law and evidence adduced, rejected all of the applicant’s contentions and refused to exclude from the first trial the evidence of the various conversations relied on by the prosecution. As I have indicated, his Honour’s judgment to the extent it was challenged on appeal was not disturbed.
The requirement that it “would not be in the interests of justice” for the previous determination to be binding
The expression “in the interests of justice” is a protean one but one of potentially wide importance. It is not possible to set out an exhaustive list of circumstances in which the requirement will be satisfied.[13]
In Alqudsi v The Queen,[14] Kiefel, Bell and Keane JJ described the notion of “the interests of justice” as “case specific”. The expression habitually trips off the judicial tongue in many and various contexts but rarely, if ever has a definition been offered. At a very general level, the consideration of the interests of justice is undertaken by every judicial officer whenever called upon to decide a dispute although the enquiry may not be articulated in this way.
[13] R v Keogh (No 2) [2014] SASCFC 136 at [116] (Gray, Sulan and Nicholson JJ).
[14] [2016] HCA 24 at [107].
Depending on the circumstances, a consideration of the interests of justice can involve not just the interests of the parties, and in particular an accused in a criminal trial, but also the interests of the State not necessarily limited to the prosecution interest in the case at hand. The interests of the parties will be a primary consideration in the sense that both sides should be fully heard and each meritorious issue considered. Nevertheless, the requirement for there to be finality in litigation must also be considered.
As far as the present case is concerned, there had already been a comprehensive hearing and judgment delivered with respect to the applicant’s Rule 49 Application which had not been disturbed on appeal. It is in this context that section 285AB imposes on the applicant an onus to demonstrate that it would not be in the interests of justice for the Judge hearing the re-trial to be bound by the earlier ruling. In my view, the applicant needed to demonstrate, in the light of new issues, that is, issues not previously addressed, that there was a real or genuine prospect that a different outcome would be arrived at if the voir dire were to be heard again.
Given my ultimate view of the matter, it is not necessary that I express any view on whether any such new issues should be of such a character, as to provide a reasonable justification for them not having been raised at the earlier hearing. There is force to the position that the underlying purpose of section 285AB is to avoid a re-run of a previous application simply on the basis that new counsel conducting the second trial has taken a different view as to the manner by which the application should be conducted including a different view as to the manner by which a witness ought to have been cross-examined or a different view as to particular submissions that ought to have been but were not put before the first Judge.
Depending on the circumstances, the following types of new issues might suffice to persuade a second court that it would not be in the interests of justice for the prior determination to be binding:
(i)if there had been demonstrable error by the first Judge in his or her approach to the law or to the facts;
(ii)if there was a new legal authority which suggested that the first Judge had approached an important issue in a way which was no longer appropriate;
(iii)if there was newly available[15] evidence of real probative value to an important issue before the first Judge;
(iv)if there had been an incompetent presentation of the argument by previous counsel such that the applicant did not receive a fair hearing; and
(v)if the material available to the second Judge were to be insufficient to enable the decision to be made whether or not it was in the interests of justice to be bound by the earlier determination.
[15] I have avoided the use of “fresh” evidence in the strict sense given that it is unnecessary to determine whether or not any additional evidence to be relied on during the second application should be qualified to this extent.

The matter was competently and comprehensively argued by the senior counsel engaged for the first trial and the Judge provided detailed reasons for judgment. Relevant principles of law together with leading authorities were analysed by the Judge. No doubt there are other cases which illustrate an application of the relevant principles and which might have been referred to in the context of the initial voir dire argument. A number of additional cases were drawn to my attention during the argument before me. However, I am satisfied that there is no matter of principle that was overlooked by the first Judge. The question ultimately concerned an application of, largely, well-established principles, as set out in relevant statutes and in leading common law authorities, to the facts established at the initial voir dire. No additional legal authority has been brought to my attention to suggest that the Judge misstated the law or stated it in a way which no longer applies.
I am not satisfied that any of the matters in (i) to (v) above have been established or identified either at all or to such an extent as to cause me to find that it would not be in the interests of justice to adopt, indeed be bound by, the earlier ruling.
The “new issues” raised by the applicant
In submitting that it would not be in the interests of justice to hold myself bound and that, as a necessary consequence, I should hear evidence relevant to and submissions on the merits of the Rule 49 Application again, the applicant raised a number of discrete “new issues”.
The applicant’s general complaint was that there were additional legal arguments that his new counsel wished to raise and there were factual matters arising from the police witness declarations that had not been put to the police witnesses in cross-examination on the first occasion. Counsel wished to put certain matters to one of the police officers, Senior Constable Milligan, by way of cross-examination on his statements and wished to make additional submissions concerning the relevant law and its application to the facts additional to those put by senior counsel at the first hearing.
To assist in understanding the applicant’s concerns, some further background needs to be provided. It is sufficient for this purpose to set out aspects of the Judge’s summary of evidence on the initial voir dire.[16]
Senior Constable Milligan gave evidence on the voir dire that he and his partner, Constable Lyons, received a tasking from police communications at 4.15 am on 8 June 2012 to attend at the address of the townhouse in relation to a disturbance and a report that screaming had been heard from that address. Senior Constable Milligan’s evidence in this respect was corroborated by tender of the police communications record. Upon arrival at the townhouse at 4.35 am, they were approached by a neighbour who opened the passenger side door of the police car and told them that he had telephoned police communications, said that something really bad had happened and advised them to be careful over there. Another neighbour separately approached and spoke to Constable Lyons. Senior Constable Milligan recalled Constable Lyons informing him that the second neighbour had said similar things to the first neighbour.
Senior Constable Milligan gave evidence that there was a light on by the front door and he saw light inside the downstairs garage. He heard noises of movement coming from within the garage. He announced that they were police, knocked on the garage doors and asked that the door be opened. He then proceeded upstairs to the front door, where he knocked and made a similar request. He could still hear noises inside. He tried the door, found it unlocked and entered the townhouse. He said that he entered under common law authority on the ground that he believed that a breach of the peace was occurring. Police communication records show that he entered at 4.39 am.
. . . .
Senior Constable Lyons[17] gave evidence generally confirming the evidence given by Senior Constable Milligan insofar as she was present. She gave evidence of her discussion with the second neighbour in the absence of Senior Constable Milligan. The second neighbour said that he did not think there was anyone inside now because he had heard screaming and was going to call the police but then he saw the two women that lived in the house drive off in separate cars. The first neighbour re-approached her at this point and said that there was definitely a guy still inside.
[16] R v McCarthy [2015] SASC 11 at [5]-[6] and [18].
[17] As at 8 June 2012, Senior Constable Lyons’ rank was that of Constable.
Counsel expressed a wish to further cross-examine Senior Constable Milligan on the topic of whether the first neighbour had told him that which he had told Senior Constable Lyons, that is, that the two women whom he understood to have been in the property had left. According to senior counsel, the submission hadn’t been made to the effect that Senior Constable Milligan did not have proper grounds for his stated belief that a breach of the peace was imminent as a justification for entering. Counsel focussed on a potential inconsistency between what Senior Constable Milligan had said in his statements prepared soon after the events in question and the evidence he gave on the voir dire some two years later which potential inconsistency was not put to the Judge.
There is little doubt that during a re-visitation of the examination of a witness by new counsel, different questions might be put in cross-examination and additional avenues of enquiry explored. However, the Judge had before him the whole of Senior Constable Milligan’s evidence, not just his oral evidence but also his witness statements. The Judge had the usual advantages available to a first instance Judge when hearing and seeing the witnesses give their evidence. His Honour accepted, notwithstanding that Senior Constable Milligan’s oral evidence was not entirely congruent with the evidence in his statement, that Senior Constable Milligan had acted in good faith.
Furthermore, his Honour had available to him the evidence of Senior Constable Milligan’s partner, Senior Constable Lyons. Her statements were tendered and she gave oral evidence and was cross-examined on this topic. Senior Constable Lyons’ evidence was accepted by the Judge; he found her also to have acted in good faith in forming the view that she could enter the premises under a common law entitlement and in order to check on the welfare of the inhabitants.
The Judge, as part of his reasoning towards a conclusion that the initial entry by Senior Constable Milligan and Senior Constable Lyons into the premises was justified at common law, made this finding.[18]
The circumstances known to the police officers prior to entry were clearly more complex than a mere report of screams having earlier emanated from the premises. Any reasonable police officer in the position of Senior Constable Milligan and Constable Lyons would reasonably have feared for the physical safety of whoever was in the house. An occupant of the house may well have been injured and in need of urgent medical attention. The mere fact that the screams had stopped did not lessen that risk and in one sense heightened it. Senior Constable Milligan and Constable Lyons were faced with a stark choice between entering the unlocked premises to assist anyone present who may have been injured and leaving the house and any such person to their fate.
His Honour found Senior Constable Lyons to have acted in good faith motivated by a concern for the health and safety of whoever might be inside the premises.
[18] R v McCarthy [2015] SASC 11 at [41].
I had regard to the reasons of the Judge leading to his conclusion that both Senior Constable Milligan and Senior Constable Lyons had, at the time, a common law right to enter the premises.[19] His Honour did not confine his reasons to a consideration of whether or not the two police officers were seeking to prevent a breach of the peace but took the view that the common law right of entry was wider and included an entitlement to enter into or remain on land to preserve life or property.[20]
[19] [2015] SASC 11 at [33]-[45].
[20] R v McCarthy [2015] SASC 11 at [34] with reference to the discussion by Gleeson CJ, Gummow, Kirby and Hayne JJ in Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [40].
I was not persuaded that the additional cross-examination of Senior Constable Milligan and the further submissions senior counsel for the applicant sought to put on the assumed outcome of that cross-examination would have had a material effect with respect to the Judge’s reasoning on this issue. I was not persuaded that this desired additional approach to the evidence of Senior Constable Milligan considered either alone or in combination with the other matters raised by counsel would cause me to consider that it would not be in the interests of justice for the rulings or determinations delivered by the Judge on 18 November 2014 to be binding.
The second new issue that the applicant’s counsel sought to agitate was to the effect that even if the first entry by Senior Constable Milligan and Senior Constable Lyons was to be regarded as lawful, it soon thereafter became unlawful to remain on the premises. Counsel maintained that once it became clear, following the initial conversation with the applicant, that the two women who had been in the premises and had been fighting had left, any authority to enter and remain ceased. Counsel maintained that this argument was not expressly put to or dealt with by the Judge.
In my view, this new matter carried little, if any, weight or significance. It depended on the submission that the only lawful entitlement to enter in the first place was in order to prevent a breach of the peace. It overlooked the finding by the Judge that the two police officers were entitled to enter in order to preserve life or property. Once the finding had been made that it was lawful to have entered in the first instance, it remained lawful, for the same reason that justified the initial entry, for the police officers to remain until at least the time when they left on the first occasion in order to make further enquiries about whether or not the two women had been in need of medical attention. I reject the contention that simply because they had been told that the two women had left, any justification for remaining evaporated.
In any event, the matter of the police officers remaining on the premises after being given this information by the applicant was dealt with, albeit briefly, by the Judge. His Honour found that, in all the circumstances, they had the implied consent of the applicant and that both of the police officers and the applicant enjoyed at that stage a common purpose. In this respect, it is to be noted that the applicant did not give evidence on the voir dire. His Honour made these observations and findings.[21]
The entry of Senior Constable Milligan and Constable Lyons at 4.39 am into the house was justified at common law.
Mr McCarthy contended that, even if the first entry was justified, the second entry at about 5.15 am in company with the brother of one of the women was unlawful because by that time the police officers had established that there was no longer anyone at the house who had been injured.
After Senior Constable Milligan and Constable Lyons entered the first time, Mr McCarthy apparently voluntarily engaged in conversation with them. There was ostensibly a common purpose between Mr McCarthy and the police in locating the two women and ensuring their welfare. Mr McCarthy told police the women might well return. Mr McCarthy did not at any point ask the police to leave.
The police officers’ remaining after the initial entry and their subsequent re-entry was with the implicit consent of Mr McCarthy, who apparently had been left in charge of the house by the residents. The second entry was lawful.
[emphasis supplied]
[21] R v McCarthy [2015] SASC 11 at [42]-[45].
Furthermore, the justification for remaining in the premises upon having first entered, was the same justification as, or was subsumed by, the justification that permitted the second lawful entry as found by the Judge which was explored at some length by his Honour.
This new matter proposed to be pursued by counsel for the applicant was no more than an attempt to re-argue the lawfulness of the first entry based on the same evidence that was before the Judge. In any event, even if the argument that the two police officers should not have remained on the premises after their initial entry and upon being told by the applicant that the two girls had left, were to succeed this would not derogate from the alternative basis expressed by the Judge for his ultimate rejection of the applicant’s initial application concerning the conversations between Senior Constable Milligan and Constable Lyons and the applicant. I am satisfied that even if the discretion to exclude had been enlivened on the basis of this new matter, the Judge would not have exercised it any differently. His Honour said this:[22]
Assuming that the unlawfulness discretion were enlivened and that this were the only ground for potential exclusion of the evidence, nevertheless Senior Constable Milligan and Constable Lyons acted in good faith motivated by their concern for the health and safety of whoever might be inside the premises. There was no deliberately unlawful conduct on their part so as to suggest that a conviction obtained by the aid of their unlawful acts would be obtained “at too high a price”.[23] They were not subsequently asked by Mr McCarthy to leave. I would not have exercised my discretion to exclude the evidence in these circumstances.
[22] R v McCarthy [2015] SASC 11 at [49].
[23] R v Ireland (1970) 126 CLR 321 at 335.
On my reading of the materials before the Judge for the purpose of the original voir dire argument, I would have exercised the discretion not to exclude in exactly the same way. Even if it were to be established that the two police officers remained in the premises longer than they should have and thereby had further conversations with the applicant that otherwise would not have occurred, this would not cause me to exercise the discretion any differently.
The third new issue sought to be agitated by counsel was that Senior Constable Milligan had not been cross-examined on the topic of whether, when he first entered the premises, he directed the applicant to come up the internal staircase in order for Senior Constable Milligan to speak with him. The assertion was that if this had occurred, it would have constituted an “apprehension” for the purpose of section 79A of the Summary Offences Act 1953. If so, the obligations imposed on the apprehending officer by section 79A had not been observed. The Judge dealt with section 79A in his judgment.[24]
[24] R v McCarthy [2015] SASC 11 at [105]-[110].
All of the evidence, including that relied on by the applicant’s counsel, concerning the conversation when the applicant was at the bottom of the steps was before the Judge. His honour was alive to the issue and made the following finding.[25]
I reject that contention. There was nothing said or done by Senior Constable Milligan or Constable Lyons before or during the four conversations capable of being regarded as conveying to Mr McCarthy that he was under apprehension or that he was not free to leave.
I was not satisfied that any additional cross-examination of Senior Constable Milligan specifically directed to this issue would have advanced the applicant’s case in a material way.
[25] R v McCarthy [2015] SASC 11 at [109].
The fourth new issue sought to be agitated by counsel was that the second entry by the police could not be justified by any common law power of entry they may have enjoyed. The issue of the common law power of entry said to justify the behaviour of the police had been squarely placed before and analysed and dealt with by the Judge. In any event, his Honour had found the second entry to have been lawful for other reasons.[26]
[26] R v McCarthy [2015] SASC 11 at [43]-[45].
The fifth and final new issue sought to be agitated by counsel related to the use to which any evidence of lies told to the police by the applicant might be put by the jury. The question to be determined for jury purposes is whether any lies proved to have been told would be available to the Crown case as evidencing a consciousness of guilt and, if so, guilt of what or only as being relevant to credit. The issue of relevance and admissibility was conceded before the Judge and the only issue debated was whether the evidence should be excluded in the exercise of the Court’s discretion.[27]
[27] R v McCarthy [2015] SASC 11 at [4].
That concession was not repeated before me. Nevertheless, on the information available to me and after hearing submissions on the matter I was satisfied that the evidence was admissible and that a rehearing of the voir dire would not be of further assistance. To the extent that the evidence had a prejudicial capacity apart from its probative value I was satisfied that such could be accommodated by appropriate jury directions.
Conclusion
In my view there was no utility in rehearing the evidence relevant to the merits of the application. There may be cases (and this is not one) where the earlier decision can be seen to be plainly wrong on a critical issue of either law or fact. However, leaving such cases aside and given the usual advantages the first Judge will have had with respect to an assessment of the credibility and reliability of the witnesses heard on the voir dire, it will not be possible to form a final view as to the merits without hearing the evidence again. To do this as part of the initial enquiry as to whether it would not be in the interest of justice for the initial determination to be binding would, in effect, give section 285AB no work to do. On a rehearing, if a different view were to be reached, the pre-condition in section 285AB might be satisfied and if the same view was reached, it almost certainly would not be. However, the whole purpose of section 285AB is to enable a determination whether there should be a second voir dire which determination is to be made before embarking on the second voir dire. This underscores a central object of section 285AB being to ensure, insofar as is practicable, that the applicant received a fair hearing at the initial voir dire but bearing in mind, to quote an aphorism from another context,[28] “a fair trial is not the same as a perfect trial”.
[28] R v Polyukhovich, unreported Supreme Court of South Australia, 22 December 1992 (Cox J).
In this respect, it should be remembered that a refusal to re-hear an application for a pre-trial ruling does not mean that the applicant, ultimately, would be without remedy. In the event of conviction, the ruling can be appealed on the basis that the evidence (as the trial turned out) was wrongly admitted and has led to a miscarriage of justice.
Ultimately, having heard and considered the arguments of counsel for the applicant as to the matters sought to be ventilated before me that were not ventilated before the previous Judge, I am not persuaded that:
(i)the Judge made any material error in his findings of fact and application of the law to those facts concerning the lawfulness of the initial entry, the remaining inside, the re-entry and the conduct generally of Senior Constable Milligan and Senior Constable Lyons; or
(ii)the Judge’s discretion to admit the evidence, even if there had been an element or elements of unlawfulness, would or should have been exercised differently.
The matters raised by counsel before me did not have the capacity to significantly undermine the findings made by the Judge. Further, even if the discretion to exclude the evidence had been enlivened, I would not be persuaded to exercise it differently from the Judge and notwithstanding the various matters raised by counsel before me.

In all of the circumstances I was not persuaded that it would not be in the interests of justice to be bound by the Judge’s ruling. For the foregoing reasons I made the ruling set out earlier.