R v McCarthy

[2015] SASC 11

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Voir Dire (Murder))

R v MCCARTHY

[2015] SASC 11

Reasons of The Honourable Justice Blue

3 February 2015

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 accused, Mr McCarthy, was charged with the murder of Mr Varehov at a townhouse at Beaumont in the early hours of 8 June 2012. Before the commencement of trial, Mr McCarthy sought discretionary exclusion of evidence of conversations between Mr McCarthy and police officers who attended at the townhouse in the early morning of 8 June 2012.

Police received a 000 call at 4.10 am from a neighbour reporting screams emanating from the townhouse. Two uniformed police officers arrived at 4.35 am. They were informed by the neighbour and a second neighbour that they had heard screams, two women lived in the townhouse and they had left the townhouse in separate vehicles before the police officers arrived. The first neighbour said that there was a man still inside the townhouse, something really bad had happened and advised the police officers to be careful.

The police officers saw lights on and heard movement inside the townhouse but did not receive a response to their calls. Finding the front door unlocked, they entered the townhouse. They spoke to Mr McCarthy, who informed them that two women had been fighting in the garage, one cut her hand on a broken bottle, and they had left in a car. The police officers did not caution Mr McCarthy or make a contemporaneous record of their conversations with him. They gave evidence on the voir dire that they did not suspect that Mr McCarthy had committed an offence or specifically that he had committed an assault.

Later that morning, detectives had further conversations with Mr McCarthy on three occasions, the conversations being recorded on videotape.  This followed Mr McCarthy having been given a form of caution by a uniformed police officer that departed from the traditional wording and order in which a caution is given. Mr McCarthy told the detectives a similar story to that which he told to the uniformed police officers.

Held:

1.       Entry into the townhouse was not unlawful because the uniformed police officers could at common law enter under the preservation of life or property power (at [42]).

2.       No caution was required to be administered in circumstances in which at the time of the conversations the police investigation was at the investigatory and not the accusatory stage; the relevant police officers did not suspect, or have reasonable grounds to suspect, Mr McCarthy had committed an assault or other offence; and their questions were directed at locating and ensuring the safety of the two women rather than any offence committed by Mr McCarthy (at [87], [124]).

3.       By reason of the caution administered by the uniformed police officer, admission of the evidence of the detectives of their conversations with Mr McCarthy was not in any event unfair (at ([127]).

4.       The police officers were not required to provide details of what they were investigating in circumstances in which this was self-evident and they did not have any relevant information beyond that known by Mr McCarthy (at [87], [128]).

5.       There was no relevant unfairness to Mr McCarthy by reason of the manner in which the uniformed police officers made notes of their conversations and they were not required in the circumstances to show them to Mr McCarthy for verification (at [94], [98]).

6. The uniformed police officers did not at the time of the conversations suspect, or have reasonable grounds to suspect, Mr McCarthy of having committed an indictable offence and section 74D of the Summary Offences Act 1953 (SA) had no application (at [104]).

7. Mr McCarthy was not apprehended by the police officers and section 79A of the Summary Offences Act 1953 (SA) had no application (at [110], [131]).

8.       There was no basis to exclude evidence of the conversations (at [111], [132]).

Criminal Law Consolidation Act 1935 (SA) s 20, s 20(1), s 20(3)(a), s 20(3)(b), s 20(3)(c), s (20)(4), s 24(1), s 24(2), s 241; Summary Offences Act 1935 (SA) s 74C, s74D, s 74E, s 79A; Summary Procedure Act 1921 (SA) s 5, referred to.
Coleman v Zanker (1991) 58 SASR 7; Driscoll v The Queen (1977) 137 CLR 517; Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1; McLauchan v Opie [1957] SASR 53; Todd v O’Sullivan (1985) 122 LSJS 403; Van der Meer v The Queen (1988) 82 ALR 10 ; R v Bueti; R v Morrisey (1997) 70 SASR 370; R v Conley (1982) 30 SASR 226; R v Dolan (1992) 58 SASR 501 ; R v Ireland (1970) 126 CLR 321; R v Murphy (1996) 66 SASR 406; R v Priddis (Unreported, Supreme Court of South Australia, Cox J, 22 September 1994); R v Szach (1980) 23 SASR 504, discussed.
Bunning v Cross (1978) 141 CLR 54; Maleverer v Spinke (1538) 1 Dyer 35b; 73 ER 79; R v Lee (1950) 82 CLR 33; R v Lobban (2000) 77 SASR 24; Lewis v Daily Telegraph Ltd [1964] AC 234; Robin v Police [2002] SASC 33, (2002) 81 SASR 253; Whelan v John Fairfax & Sons Ltd [1988] 12 NSWLR 148, considered.

R v MCCARTHY
[2015] SASC 11

BLUE J:

1. These are my reasons for my ruling immediately before commencement of trial declining to exclude evidence of conversations between police officers and the accused, Patrick McCarthy, on the morning of 8 June 2012.

2. The accused, Mr McCarthy, was charged with the murder of Michael Varehov on 8 June 2012.

3. On 8 June 2012, police officers attended at a townhouse in Beaumont in response to a 000 call from a neighbour reporting screaming emanating from the premises. They entered the premises and found Mr McCarthy. Several police officers had a number of conversations[1] with Mr McCarthy over the next few hours before he was driven home.

   [1]    I use the neutral term “conversations” because the status of the communications between the police officers and Mr McCarthy and whether they comprised conversations or interrogations is in dispute.

4. Mr McCarthy did not challenge the relevance or admissibility as such of the conversations, but contended that evidence of them should be excluded in the exercise of the Court’s discretion.

   Evidence on the voir dire

5. 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.

6. 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.

7. Senior Constable Milligan gave evidence that, as he entered, he caught a fleeting glimpse of a person possibly wearing a skirt or dress passing behind an internal door. Senior Constable Milligan went over to the door and saw that it lead to a staircase down to the garage. He yelled out to the person to present themselves and a male person appeared. This transpired to be Mr McCarthy, who was wearing a T-shirt and a towel around his waist. Mr McCarthy appeared to be highly agitated, hyper alert, sweating and a bit shocked to see police. Senior Constable Milligan had a conversation with Mr McCarthy (the first conversation). He asked Mr McCarthy whether there was anyone else present in the house and what was going on. Mr McCarthy told him that he was the only one left in the house; there had been two women in the house fighting in the garage but they had left in a car.

8. Senior Constable Milligan gave evidence that he observed blood on Mr McCarthy’s right hand and asked him how he got that. In the meantime, Constable Lyons had gone downstairs to the garage and on her return reported that she had seen a small amount of blood equivalent to a nose bleed. Mr McCarthy explained that one of the girls had been holding a bottle of red wine which she dropped, cutting her hand. He broke the fight up and got blood on his hand in doing so. He was cleaning up the blood in the garage when the police officer knocked on the door. On being asked for the women’s names, he gave their first names and said that he had known one of them since she was a little girl. They had met that day as a group, drinking at hotels and returning to the house to party. On being asked where the women had gone, Mr McCarthy said that more than likely they had gone to hospital or were going to return.

9. Senior Constable Milligan’s evidence was corroborated by audio recordings of police communications and a formal police communications record. The records show Senior Constable Milligan reporting at 4.46 am that two women had been present in the house, one may have a lacerated hand caused by a bottle and it appeared to be a fight between two women. He provided their first names.

10. Senior Constable Milligan gave evidence that he requested police communications to contact the Royal Adelaide Hospital, Modbury Hospital and Flinders Medical Centre for females seeking treatment for a lacerated hand or with the first names provided by Mr McCarthy. He and Constable Lyons left in their car to travel to the Royal Adelaide Hospital to make enquiries in person. He believed what he was told by Mr McCarthy and did not doubt the account provided to him. He did not intend at that point to speak to Mr McCarthy again. If he had suspected that Mr McCarthy had been involved in a serious assault, he would not have just left him there.

11. The records show that between 4.54 and 5.03 am police dispatch informed Senior Constable Milligan that none of the three hospitals had reported females matching the descriptions provided. Senior Constable Milligan gave evidence that he and Constable Lyons therefore returned to the townhouse address and parked their police car up the street to wait and see if the women returned.

12. Senior Constable Milligan gave evidence that at about 5.11 am, two cars arrived driven by the brother and mother of one of the women. The brother told the police officers that he and his mother had each received a phone call from one of the women who lived in the house saying that there had been an incident at the house that involved his sister and they had come to make sure that she was alright. He said that he knew Mr McCarthy. The brother and the two police officers then went back up the stairs and entered the townhouse. The brother had a conversation just inside the front door with Mr McCarthy in the presence of Senior Constable Milligan (the third conversation). Mr McCarthy told the brother the same story he had told Senior Constable Milligan. After hearing the account provided by Mr McCarthy, the brother left.

13. Senior Constable Milligan gave evidence that he then inspected the garage himself. He observed a strong smell of disinfectant, water pooling on the stairs where they appeared to have been recently cleaned, and the garage floor appeared recently cleaned. There was quite a bit of blood spatter on furniture against one wall, a broken piece of wood with blood on it, a broken pair of prescription glasses and hair attached to flesh on the floor. He still believed that there had been a fight between two women but he now believed that one may have been injured quite badly. As a result, at around 5.17 am he called for further police to attend.

14. Senior Constable Milligan gave evidence that he then had a further conversation with Mr McCarthy (the fourth conversation). He asked Mr McCarthy why there was so much blood in the garage, to which Mr McCarthy replied that the women were fighting, going at it, pulling each other’s hair and one cut herself on the broken bottle.

15. At about 5.20 am, two further uniformed police attended, followed shortly thereafter by two more. Senior Constable Milligan asked Mr McCarthy to remain in the lounge while he made further enquiries and surveyed the scene. He heard the washing machine on in the laundry and saw that there were clothes inside it. He saw bloody fingerprints on the washing machine buttons. He turned the washing machine off but left the clothes inside. He also noticed a mop and bucket in the laundry sink, which contained shards of glass in bloody water.

16. Senior Constable Milligan gave evidence that at 5.37 am other police officers set up a camera in the lounge room where Mr McCarthy was sitting, which commenced making an audiovisual record of events in the lounge room. At 6.45 am, a new tape was inserted in the camera. The following conversation took place between Senior Constable Milligan and Mr McCarthy:

    Q.    Pat just to let you know that there’s recording equipment, the video’s on.

    A.    Yeah

    …

    Q.Yep I’ll just just let you know, obviously it’s recording what’s happening here. Obviously I’m not interviewing you and no we have not interviewed you over it.

    A.    Yeah.

    Q.Okay so ahm just letting you know that anything you do or say obviously will be recorded.

    A.    Okay.

    Q.    And may be, may be used in court, but you understand that.

    A.    Hm.

    Q.    That you don’t have to say anything...

    A.    Is that from now on?

    Q.Well look ahm previously as well, but I’m just letting you know, I just ahm hadn’t said it before but I did say, remember, I did say to you before that I’m not interviewing you or anything like that…     

17. Senior Constable Milligan gave evidence that, throughout the period he was at the premises, he did not form a suspicion that Mr McCarthy had committed an assault at the premises.

18. Senior Constable Lyons[2] 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.

    [2]    As at 8 June 2012, Senior Constable Lyons’ rank was that of Constable.

19. Senior Constable Lyons gave evidence that she believed the story told by Mr McCarthy to Senior Constable Milligan, accepting it at face value. She did not suspect Mr McCarthy of having committed an offence.

20. Senior Constable Lyons gave evidence that, when she first went down to the garage, her focus was on looking for the two women. She made a relatively quick and cursory inspection. She saw some blood streaks on the floor that appeared to have been wiped, a bottle of disinfectant, and a shard of glass and a broken wooden pole that had blood on them. What she saw was consistent with what Mr McCarthy had said. She reported to Senior Constable Milligan that she had seen some blood on the floor but did not go into any further details.

21. Senior Constable Lyons gave evidence that she then had a conversation with Mr McCarthy (the second conversation). She asked Mr McCarthy how the blood got on the ground in the garage, and he responded that it was not blood but wine spilled when the women were fighting. She responded that she knew the signs of blood when she saw it. Mr McCarthy told her the same details about the fight as he had earlier told Senior Constable Milligan.

22. Senior Constable Lyons gave evidence that, when they left the house to go to the Royal Adelaide Hospital, the focus of the investigation was on finding the two women and finding out who they were, if they had any injuries and if they were okay. She said that, if she had suspected Mr McCarthy of a serious offence, she would not have left him there at the premises.

23. Senior Constable Lyons gave evidence that, after the brother and mother of one of the women left, she had a more thorough look in the garage. Until that point, she did not suspect Mr McCarthy of having committed an assault. On the second visit to the garage, she observed that it appeared to have been cleaned up after her first visit and that there had been a lot more blood than she initially thought. At that point the police officers decided to call for the attendance of additional police. At that point she suspected that Mr McCarthy had committed an assault or been involved in a serious criminal offence in some way. She did not have any further conversation with Mr McCarthy after that point.

24. Detective Brevet Sergeant Gourd gave evidence that he arrived at the townhouse at about 8.40 am and had a conversation with Detective Senior Constable Cullinan. She told him that Mr McCarthy was a witness to an assault, possibly between two women. He had earlier been given a briefing by a Detective Senior Sergeant. He did not suspect Mr McCarthy of having committed an assault and his focus in speaking to Mr McCarthy was in locating the two women involved. The audiovisual record of the conversation between Detective Gourd and Mr McCarthy was tendered in evidence. Mr McCarthy told him the same story he had previously told Senior Constable Milligan and Constable Lyons.

25. Detective Senior Constable Cullinan gave evidence that she arrived at the townhouse at 7.10 am. She had earlier conducted a briefing with Detective Sergeant O’Reilly and then at the townhouse with Sergeant Rogerson. By the end of the briefings, she suspected that Mr McCarthy either had knowledge that an assault had taken place or was involved in an assault that had taken place at that address involving the two women. The focus of the investigation was on locating the two women to ensure their safety. Mr McCarthy was not a suspect and she did not suspect him of having committed a serious offence, but she suspected that he had information relating to the events that had happened at the address.

26. Detective Cullinan gave evidence that, after the briefing, she inspected the garage. At 9.20 am she had a conversation with Mr McCarthy which was recorded. The purpose of the conversation was to establish what knowledge Mr McCarthy had of what had gone on at the address, to see if he could help in locating the women and assist with the circumstances regarding the assault and the names reported. She was informed that Senior Constable Milligan had been told to put the video camera on and had cautioned Mr McCarthy. She introduced herself to Mr McCarthy and reminded him that he was still under caution and did not have to answer any questions she was going to put to him. At the time she believed that this was being recorded, but later she became aware that the camera had not been activated until the end of this initial conversation. The audiovisual record of the conversation between Detective Cullinan and Mr McCarthy was tendered in evidence. Mr McCarthy told her the same story he had previously told Senior Constable Milligan and Constable Lyons.

1. Detective Gourd gave evidence that he was present during the conversation between Detective Cullinan and Mr McCarthy but he did not recall one way or the other whether Detective Cullinan referred to a caution or to Mr McCarthy not having to answer any questions. Two uniformed police officers were identified on the audiovisual record as also being present. They were not called to give evidence.

2. At the end of the conversation, Detective Cullinan offered Mr McCarthy a lift home. Acting Officer in Charge Detective Senior Sergeant Minchenberg then arrived and Detective Cullinan re-activated the video camera for the purposes of a conversation between Detective Minchenberg and herself and Mr McCarthy. Mr McCarthy was then driven home by uniformed police.

3. Detective Senior Sergeant Minchenberg gave evidence that he arrived at the townhouse at 9.42 am. He had earlier been given a briefing by Detective Sergeant O’Reilly and then at the townhouse by Detective Cullinan. He regarded Mr McCarthy as a witness and nothing more. His focus was on the welfare of the two women, and on finding out their location for that purpose. His purpose in having a further conversation with Mr McCarthy in addition to the conversation Detective Cullinan already had was to try to impress upon Mr McCarthy the importance of actually locating the two women to get them medical assistance or to find out further what may have occurred. He wanted to be clear in his own mind that the police had actually asked Mr McCarthy directly “Where are these girls?”. He did not suspect Mr McCarthy at that time of having committed an indictable offence and, if he had, he would have treated Mr McCarthy quite differently.

4. The audiovisual record of the conversation between Detectives Minchenberg and Cullinan and Mr McCarthy was tendered in evidence. Mr McCarthy told them the same story he had previously told Senior Constable Milligan and Constable Lyons and Detective Cullinan.

   Conversations with Senior Constable Milligan and Constable Lyons

5. 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[3] 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[4] 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.

   [3]    Being the first, second, third and fourth conversation as defined above.

   [4]    Criminal Law Consolidation Act 1935 (SA) s 20.

   Unlawful entry

6. Mr McCarthy invoked the unlawfulness discretion[5] in seeking exclusion of evidence of the conversations on the ground that they resulted from the unlawful entry by Senior Constable Milligan and Constable Lyons of the premises. In R v Ireland,[6] Barwick CJ said:

   Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. … On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.[7]

   Lawfulness of entry

   [5]    R v Ireland (1970) 126 CLR 321 at 334-335 per Barwick CJ (McTiernan, Windeyer, Owen and Walsh JJ agreeing); Bunning v Cross (1978) 141 CLR 54 at 68-77 per Stephen and Aickin JJ (Barwick CJ relevantly agreeing).

   [6]    R v Ireland (1970) 126 CLR 321.

   [7] Ibid at 334-335.

7. In Kuru v State of New South Wales,[8]  the High Court considered, but did not determine, the limits of the common law entitlement of police officers to enter land to prevent a breach of the peace. Gleeson CJ, Gummow, Kirby and Hayne JJ restated three general propositions in relation to trespass in the following terms:

   As was pointed out in this Court’s decision in Plenty v Dillon, it is necessary to approach questions of the kind now under consideration by recognising the importance of two related propositions. First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that entry had lawful authority to enter. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land. And in the circumstances of this case it is also important to recognise a third proposition: that an authority to enter land may be revoked and that, if the authority is revoked, the entrant no longer has authority to remain on land but must leave as soon as is reasonably practicable.[9]

   (Footnotes omitted)

   [8] [2008] HCA 26; (2008) 236 CLR 1.

   [9] Ibid at [43].

8. Before turning to the common law entitlement of police officers to enter land to prevent a breach of the peace, Gleeson CJ, Gummow, Kirby and Hayne JJ referred to the common law entitlement to enter or remain on land to preserve life or property in the following terms:

   The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property.[10]  The actions of fire-fighters, police and ambulance officers will often involve application of that principle. There being no evidence of danger to life or property, it was not suggested that this was such a case.[11]

   [10]   Maleverer v Spinke (1538) 1 Dyer 35b at 36b, 73 ER 79 at 81.

   [11]   Kuru v State of New South Wales at [40].

9. Mr McCarthy accepted that the reference to “danger to life” encompasses not only mortal danger but also significant danger to health. In Todd v O’Sullivan,[12] Legoe J referred to a duty:

   to protect life and property (i.e. to protect persons from injury and property from damage).[13]

   [12] (1985) 122 LSJS 403.

   [13] Ibid at 410.

10. The prosecutor contended that Senior Constable Milligan and Constable Lyons were entitled to enter the townhouse under this common law entitlement. Mr McCarthy contended that the circumstances known to the police officers prior to entry amounted to no more than the report of screams having earlier emanated from the premises, that screams might be heard for many reasons involving no violence or threat of violence and mere reports of screams did not give rise to a reasonable belief by the police officers that there was an ongoing risk of injury justifying entry into the premises.

11. Determining whether police officers or other persons are entitled to enter premises to preserve life or property will often involve questions of degree which, in turn, involve weighing the likelihood and seriousness of the risk against the infringement of the occupier’s rights in all of the circumstances.

12. The tasking that Senior Constable Milligan and Constable Lyons received was “check welfare disturbance” and that screaming emanating from the premises had been reported by a neighbour whose name was provided by dispatch. The tasking was inconsistent with a mere complaint about noise disturbing the neighbours’ sleep and indicated that there was a risk to the welfare of the person screaming. The timing of the report being after 4.00 am was a circumstance tending to increase the perceived level of risk.

13. The information received by Senior Constable Milligan and Constable Lyons from the two neighbours necessarily increased the perceived level of risk to the occupants’ welfare. They were told that two women lived in the townhouse and that there was a guy still in there. Each neighbour heard screams that each thought warranted reporting to the police. Each was sufficiently concerned to be in the street after 4.00 am in the middle of winter and to approach the police on their arrival, the first neighbour opening the police car door before the police officers had a chance to exit the car. The first neighbour said that something really bad had happened, and specifically advised the police to be careful.

14. Senior Constable Milligan and Constable Lyons saw light on in the garage and heard noises indicating that at least one person was inside the premises. That person did not respond to calls from the police officers. The front door to the townhouse was not locked and the police officers were able to enter without breaking. In a negative sense, whoever was in the house did not tell the police to go away.

15. 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.

16. The entry of Senior Constable Milligan and Constable Lyons at 4.39 am into the house was justified at common law.

17. 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.

18. 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.

19. 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.

    Effect on conversations

20. I address the question whether the subject matter of the conversations was ascertained or procured by means of unlawful entry on the assumption, contrary to the conclusion reached above, that the entry into the premises was unlawful.

21. But for the unlawful entry, there would have been no conversations. However, in a causal sense, the circumstances in which the police officers entered the premises were largely superseded by Mr McCarthy apparently voluntarily engaging in conversation with the police officers in circumstances in which he did not ask them to leave and all three persons ostensibly had a common purpose in working together to locate the two women and ensure their welfare.

22. The causal connection between the posited unlawful entry and the subsequent conversations was too tenuous to result in exclusion of the evidence of the conversations.

    Exercise of discretion

23. 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”.[14] They were not subsequently asked by Mr McCarthy to leave. I would not have exercised my discretion to exclude the evidence in these circumstances.

    [14]   R v Ireland (1970) 126 CLR 321 at 335.

    No caution or details provided about potential offence under investigation

24. Mr McCarthy invoked the unfairness discretion[15] contending that in the circumstances it was incumbent upon Senior Constable Milligan and Constable Lyons to give him a standard caution about answering questions and also to inform him of the nature and details of the possible offences they were investigating. It was contended that their failure to do so lead to unfairness to Mr McCarthy.

    Unfairness and the requirement for a caution

    [15]   R v Lee (1950) 82 CLR 133; R v Lobban (2000) 77 SASR 24; Robin v Police [2002] SASC 33, (2002) 81 SASR 253.

25. In Van der Meer v The Queen,[16] Mason CJ said:

    ...The common law balances (a) the need to allow the police freedom of action in the investigation of crime in order to ascertain the wrongdoer and (b) the need to ensure that a suspect is fairly treated and his right to silence protected. This balance is achieved by permitting the police to conduct a general enquiry into an unsolved crime until the stage is reached when the accusatory stage begins. It is notoriously difficult to define the point at which that stage begins because there is an infinite variety of fact situations.[17]

    [16] (1988) 62 ALJR 656 .

    [17] Ibid at 661.

26. In R v Szach,[18] King CJ (Mohr J agreeing) said:

    The police are not obliged to disseminate information in their possession. Frequently the prospects of the success of their inquiries would be enhanced by non-disclosure and damaged by disclosure.

    ...

    A stage may come, moreover, in the course of police enquiries when some degree of disclosure is requisite. If the investigation proceeds successfully, it will reach a stage at which the police are satisfied about the nature of the crime which has been committed and believe that it was committed by a particular person. It then becomes necessary to interrogate that person, with a view to laying the foundation for charging him with the crime unless in the course of the interrogation he is able to exonerate himself. I think that at the stage of commencing such an interrogation, the dictates of fairness differ from those applying to the earlier stage of the investigation. The focus of the investigation has changed. The investigation has passed beyond the stage of merely putting questions with a view to eliciting useful information. It has hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself. The requirements of fairness change in accordance with the changed situation. While the police are merely seeking information, fairness involves no more than that the questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires, and that his answers be faithfully reported. When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his rights to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position. Fairness to the suspect, in those circumstances, requires that he be made aware of the nature of the crime concerning which he is to be interrogated.[19]

    [18] (1980) 23 SASR 504.

    [19] Ibid at 582, 583.

27. In R v Dolan,[20] King CJ (Mulligan J agreeing) said:

    The cautioning of a suspect that he is not obliged to answer questions, is the offspring of the rule rendering inadmissible in evidence confessions which have not been made voluntarily. It is also related to the discretion which a trial judge has to exclude evidence, including confessional evidence, if the admission of that evidence would be unfair to the accused. The caution tends to negative any suggestion of involuntariness or unfairness. 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. The judge must decide those issues by taking all relevant circumstances into account, including the omission to administer the caution.

    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 have been many developments in police interrogation practice in recent years, not least of which is the use of the formal interview in an interview room on police premises, the questions and answers being recorded either on a typewriter or, more recently, by means of audio or videotape. This interrogation frequently takes place before arrest. I do not think that the view which finds expression in the older cases that the need for the caution only arises when a police officer has made up his mind to arrest, adequately satisfies the requirements of fairness in the light of contemporary practices. It is noteworthy that the version of the English Judges’ Rules adopted in 1964, provides that:

    “As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.”

    …

    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 a 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 exercise of the judge’s discretion.[21]

    [20] (1992) 58 SASR 501.

    [21] Ibid at 504–505.

28. In R v Murphy,[22] Doyle CJ (Olsson and Perry JJ agreeing), after quoting parts of the passages set out above from Van der Meer and Dolan, said:

    Because the ultimate question is one of unfairness, in the sense of unfairness arising from the use answers in evidence, one cannot be dogmatic in the statement of relevant principles. On the other hand, as the passages cited indicate, courts must establish reasonably clear principles or guidelines which can be applied in practice by police officers. The passages cited indicate that the commencement of the accusatory stage marks the point at which a caution must be given. The presence of reasonable grounds to suspect a person indicates that that stage has been reached, even if the police have decided not to charge the suspect. There may be, of course, other indications.

    I am prepared to accept, as counsel argued, that these principles also should not be regarded as exhausting the requirement of fairness. Accordingly, it was argued that in this case the police should at least have told Mr Murphy that his possible involvement was being investigated, even if a caution was not called for. I accept that there may be cases in which a person being question should be told that he or she is a suspect or possible suspect. The question is whether this is one of those cases.[23]

    (Citations omitted)

    Subjective or objective approach to suspicion

    [22] (1996) 66 SASR 406.

    [23] Ibid at 412.

1. The cases that refer to suspicion of commission of a crime as a criterion for the necessity for a caution use terms variously suggesting that the test for the existence of the suspicion is subjective, objective, or a combination.

2. In general usage, the word suspect has varying meanings, ranging from a bare belief without any grounds that the “suspect” may have committed the crime to a belief that the suspect may have committed the crime coupled with a belief that there are reasonable grounds to hold that suspicion.[24] In the context of its being a criterion for the necessity for a caution, reference to suspicion should be understood as a reference to a suspicion on what the police officer believes are reasonable grounds (if a subjective test) or a suspicion on what in fact are reasonable grounds (if an objective test). Accordingly, even the subjective test involves reference to reasonable grounds (albeit on the subjective assessment of the police officer).

   [24]   See, in a different context, Lewis v Daily Telegraph Ltd [1964] AC 234 at 275 per Lord Hodson and 285 per Lord Devlin; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 160 per Hunt J.

3. The objective existence of reasonable grounds to suspect may give rise to a finding that a police officer subjectively held that level of suspicion. Conversely, the non-existence of reasonable grounds to suspect might give rise to the opposite finding. There is an evidentiary interrelationship between the objective existence of reasonable grounds to suspect and the subjective existence of a reasonable suspicion. The existence of reasonable suspicion must necessarily depend to an extent on what the police officer believes, including whether the police officer believes the story initially told by the person being questioned.

4. The ultimate criterion in considering the necessity for a caution is one of fairness, having regard to the stage the investigation has reached and other matters beyond merely the existence of reasonable suspicion (whether subjective or objective). This suggests that the existence of reasonable suspicion should be considered from both a subjective and objective perspective.

5. In R v Bueti; R v Morrisey,[25] Doyle CJ (Lander and Bleby JJ agreeing) said:

   In the present case the trial judge found, on the voir dire, that in light of the acceptance by the detectives of what Mr Bueti said, there were not reasonable grounds to suspect him of the commission of an offence. Although the test of whether they are reasonable grounds to suspect a particular person is expressed in objective terms, the existence of such grounds must depend, to some extent, on the view taken by the relevant police officers of the information provided to them. To my mind, it would, for example, be impractical for the court to say that in a given situation if the relevant police officers had disbelieved most of what was told to them, they would have had a reasonable grounds to suspect the commission of an offence, and on that basis to hold that a caution should have been administered, even though the very reason for the police not administering the caution was that they genuinely believed the information given to them. It is not necessary to explore this point in any detail in this case. In the light of the judge’s finding, in my opinion, the question of whether a caution was required is to be approached on the basis that the police officers did believe that the information given by Mr Bueti to Mr Morrissey had been given in the course of idle “pub talk”, and without any intention on the part of Mr Bueti to encourage the commission of the relevant offence.[26]              

   Information about investigation

   [25] (1997) 70 SASR 370.

   [26] Ibid at 378.

6. There are occasions in which fairness requires that, even if a caution is not necessary, or in addition to a caution, the person being questioned be informed of the nature and purpose of the investigation by the police.

7. In R v Szach,[27] King CJ (Mohr J agreeing) said:

   ... I think that fairness may often require that the suspect be told the nature of the crime under investigation at an earlier stage than that at which the investigating officer is required to give the caution.[28]

   [27] (1980) 23 SASR 504.

   [28] Ibid at 583.

8. In R v Murphy,[29] Doyle CJ (Olsson and Perry JJ agreeing), said:

   ... In a particular case it might be necessary for a police officer who is questioning a person, not a suspect, to bring to that person’s attention the fact that his or her possible involvement is under consideration. That might be necessary if, for some reason, the person is at a disadvantage because his or her attention has been diverted from the significance of the matter under consideration (for example, by shock or by grief or because of an injury), if the person is not aware of the significance of the occasion (for example, if the person thought that the inquiries related to a minor matter only when in fact they related to a serious matter), or if the person is under the impression that the police are making casual inquiries only, or if the person thinks for some reason that there is no need to give careful consideration to his or her answers. In such a case fairness might well require the police, in one way or another, to alert the person to the fact that the questions being put relate to a serious matter and that they will include matters relevant to the possible involvement of the person questioned.[30]        

   [29] (1996) 66 SASR 406.

   [30] Ibid at 414.

9. In R v Priddis,[31] Cox J said:

   Generally speaking, police officers investigating a serious crime are not obliged to tell a suspected person anything at all. However, a person, certainly a suspect, is entitled to know what he is being questioned about and to know the seriousness of the matter so that he can make an informed judgment as to whether or not he will answer the police questions.

   He also needs to have it brought home to him that he should treat the matter, including any questions, seriously, and give thoughtful and not careless answers - in other words, to do himself justice, having in mind the gravity of the situation - and he also needs to assess the seriousness of his own position and the way the police are regarding him carefully in deciding whether or not he will take up the invitation to get advice from a friend or a lawyer.[32]

   Evidence of Senior Constable Milligan and Constable Lyons

   [31]   (Unreported, Supreme Court of South Australia, Cox J, 22 September 1994).

   [32]   Ibid at 25.

10. Senior Constable Milligan and Constable Lyons gave evidence that, before and during their conversations with Mr McCarthy, they did not suspect that Mr McCarthy had committed an assault. Mr McCarthy challenged their evidence and invited me to reject it and to find that they did in fact suspect that Mr McCarthy had committed an assault in the garage.

11. Mr McCarthy identified a series of matters observed by Senior Constable Milligan and Constable Lyons or of which they were informed that he contended in combination gave rise to reasonable grounds to suspect him of having committed an assault. He contended that from these matters it should be inferred that Senior Constable Milligan and Constable Lyons entertained such a suspicion notwithstanding their evidence to the contrary. Alternatively a caution was required regardless of their state of mind because objectively there were reasonable grounds to suspect him of having committed an assault.

    The first conversation

12. The first relevant point in time was when Senior Constable Milligan began the first conversation with Mr McCarthy. The matters by reason of which Mr McCarthy contended that Senior Constable Milligan must have suspected that he had committed an assault include the fact that screams emanating from the premises had been reported by a neighbour; Mr McCarthy did not respond to calls by the police officers from the ground or first floor levels; he disappeared down the internal stairs when the police officers entered; he appeared to be agitated, hyper alert and sweating; he had blood on his hand and the internal stairs appeared to have been recently cleaned.

13. At this early point in time, it was premature, and the police officers had insufficient information, to form a reasonable suspicion that Mr McCarthy had committed an assault. An important aspect of the context for consideration by Senior Constable Milligan and Constable Lyons was that the second neighbour had informed them that two women resided in the townhouse and that they had driven away in separate vehicles. A reasonable possibility arising out of this information was that one of the women was the source of the screams and that she was not too badly injured given that she was able to drive. While it was possible that another person who had been the source of the screams was still present in the townhouse, Senior Constable Milligan and Constable Lyons had no affirmative evidence that this was so. The fact that Mr McCarthy remained at the premises was some contra-indication that he had committed an assault. The matters identified by Mr McCarthy, both individually and collectively, were too equivocal to give rise to reasonable grounds to suspect that Mr McCarthy had committed an assault at the premises. I accept the evidence of Senior Constable Milligan and Constable Lyons that subjectively they did not hold a reasonable suspicion that Mr McCarthy had committed an assault at that point in time.    

14. At this early point in time, the police were only embarking on the initial stages of the investigatory stage and were not approaching an accusatory stage. They did not know whether an assault had in fact been committed and, if so, the identity of the victim or the perpetrator or its extent. Their questions were exploratory and in no sense did they amount to an interrogation. The focus was upon identifying what had occurred at the premises, whether there was anyone else at the premises and the welfare of the two women rather than investigating any offence committed by Mr McCarthy.

15. This was not a case in which it was unfair for the police to speak to Mr McCarthy at the investigatory stage without giving him a caution. Nor was there any information that the police officers were obliged, as a matter of fairness, to disclose to McCarthy before speaking to him.

    The second and third conversations

16. The second relevant point in time was immediately before the third conversation between Mr McCarthy and the brother of one of the women in the presence of Senior Constable Milligan. By that point, Senior Constable Milligan had been told by Mr McCarthy during the first conversation that the two women who lived at the house had been fighting, one had cut her hand on a broken bottle and they had both left in a car. Constable Lyons, after a brief inspection of the garage, had reported to Senior Constable Milligan that there was a small amount of blood in the garage equivalent to a nosebleed. During the second conversation between Mr McCarthy and Constable Lyons, Mr McCarthy had explained that he got blood on himself when attempting to break up the fight between the two women. The information provided by Mr McCarthy about two women living in the house and leaving in a car was consistent with the information provided by the second neighbour before the police officers entered the townhouse.

17. The additional matters learnt by Senior Constable Milligan after his initial entry into the townhouse tended to lessen, rather than increase, any level of suspicion that Mr McCarthy had committed an assault. The police officers’ state of mind was corroborated by their actions. The police communications records show that they passed on the information provided by Mr McCarthy and requested that inquiries be made of hospitals in relation to two women presenting as described by Mr McCarthy. They left the townhouse to make their own inquiries at the Royal Adelaide Hospital based on the information provided by Mr McCarthy. When they were advised by dispatch that no women fitting the description had presented to hospital, they returned and parked their car up the street to wait for the women to return. The persons who arrived were the mother and brother of one of the women. The brother informed Senior Constable Milligan that he had been told that an incident had occurred involving his sister. I accept the evidence of Senior Constable Milligan and Constable Lyons that subjectively they did not hold a reasonable suspicion that Mr McCarthy had committed an assault at that point in time.

18. The matter was still in the investigation stage and had not moved to an accusatory stage. The focus of the investigation was on locating the two women who resided at the townhouse. The third conversation was not an interview of Mr McCarthy by the police but rather a conversation between Mr McCarthy and the brother of one of the women in Senior Constable Milligan’s presence.

19. Mr McCarthy contended that, if they did not suspect Mr McCarthy of having committed an assault, Senior Constable Milligan and Constable Lyons must at least have suspected that he had committed the offence of assisting an offender[33] by cleaning up a crime scene.

    [33]   Criminal Law Consolidation Act 1935 (SA) s 241.

20. In cross-examination, Senior Constable Milligan said generally that he did not suspect Mr McCarthy of having committed an offence. While it was put to him that Mr McCarthy’s cleaning up must have raised his suspicion that Mr McCarthy was involved in a criminal offence, it was not put to him that he suspected or should have suspected that Mr McCarthy had committed the offence of assisting an offender. Similarly, in cross-examination Constable Lyons said generally that she did not suspect Mr McCarthy of having committed an offence at this point. While it was put to her that she suspected that Mr McCarthy was attempting to clean up what was a crime scene, it was not put to her that she suspected or should have suspected that Mr McCarthy had committed the offence of assisting an offender.

21. Unless an inference can and should be drawn that Senior Constable Milligan and Constable Lyons must have suspected Mr McCarthy of assisting an offender, such a finding should not be made given their evidence and the manner in which they were cross-examined.

22. It is an essential element of the offence of assist an offender that the physical element of the offence, in this case cleaning up a crime scene, is accompanied by an intention to assist the principal offender to escape apprehension or prosecution. At the time presently being considered, Constable Lyons had only made a cursory examination of the garage and reported a small amount of blood, the second neighbour had informed the police officers that the two women had driven away and, on Mr McCarthy’s account, the only injury identified was a laceration to the hand of one of the women. Objectively, there were reasonable grounds to suspect that one of the two women had committed a basic assault[34] but not a more serious offence.

    [34]   Criminal Law Consolidation Act 1935 (SA), s 20.

23. There is no basis for me to infer that crime scene examinations are commonly undertaken in cases of basic assault or that the police officers believed that they were or that they believed that Mr McCarthy thought that they were. Constable Lyons gave evidence that domestic disturbances were very common. There is no basis for me to infer that crime scene examinations are undertaken in cases other than major crimes.

24. The fact that Mr McCarthy voluntarily divulged details about the fight between the two women and divulged that he was cleaning up tended to point away from a suspicion that he was cleaning up with the intention of assisting the principal offender escape apprehension or prosecution.

25. In these circumstances, objectively at the point presently being considered, Senior Constable Milligan and Constable Lyons did not have reasonable grounds to suspect that Mr McCarthy’s intention in cleaning up was to assist the principal offender escape apprehension or prosecution as opposed to merely cleaning up. I do not infer that they must have entertained such a suspicion.

26. At this time, the police officers had not gathered any information beyond that known to Mr McCarthy. He knew more than they did about what had occurred. There was no information that the police officers were obliged, as a matter of the fairness, to disclose to McCarthy before speaking to him on these occasions.

    The fourth conversation

27. The third relevant time was immediately before the conversation between Senior Constable Milligan and Mr McCarthy after Senior Constable Milligan had himself inspected the garage. Senior Constable Milligan observed a strong smell of disinfectant, blood splatter on furniture against one wall, a broken piece of wood with blood on it, a broken pair of prescription glasses and hair attached to flesh on the floor. He gave evidence that he still believed that there had been a fight between two women, but he now believed that one may have been injured quite badly.

28. Senior Constable Milligan gave evidence that at this point he still did not suspect Mr McCarthy of having committed an assault. I accept his evidence. While his observations in the basement increased the likelihood that an assault had been committed by one of the two women and increased the potential seriousness of that assault, objectively it did not affect the level of suspicion that it was Mr McCarthy who had committed the assault. The fourth conversation between Senior Constable Milligan and Mr McCarthy was still at the investigatory, and not at an accusatory, stage. Mr McCarthy maintained the same account that he had previously provided. All of the conversations between Senior Constable Milligan and Mr McCarthy were relatively limited and informal and did not approach an interrogation characteristic of the accusatory stage.

29. Mr McCarthy pointed to the police communication record in which Senior Constable Milligan reported that it appeared that more than a laceration to the hand had occurred and it was a bit more sinister than that but he could not say more over the air because persons were within earshot. In that report, Senior Constable Milligan was referring to the potential seriousness of injury to one of the women rather than by whom he suspected that injury was inflicted.

30. Mr McCarthy pointed to the evidence given by Constable Lyons that, after her second examination of the garage, she suspected that Mr McCarthy had been involved in an assault (albeit she did not have any further conversation with him after forming that suspicion). Notwithstanding that evidence, I accept the evidence of Senior Constable Milligan that he did not form such a suspicion and I do not consider that objectively the circumstances were such that I should reject that evidence or find that, in any event, objectively there were reasonable grounds for such a suspicion at that point.

31. Mr McCarthy contended that, if he did not suspect Mr McCarthy of having committed an assault, Senior Constable Milligan must at least have suspected that Mr McCarthy had committed the offence of assisting an offender by cleaning up a crime scene.

32. As noted above, it was not put to Senior Constable Milligan in cross-examination that he formed such a suspicion. Considered objectively, while it now appeared to Senior Constable Milligan as a result of his examination of the garage that the assault by one of the women was more serious than first appeared, to the knowledge of Senior Constable Milligan the women had not been so badly injured that they were unable to drive away in their cars and the brother and mother of one of them had received telephone calls from the other woman. In these circumstances, from the perspective of Senior Constable Milligan, whatever assault had occurred in the garage was not so serious that Senior Constable Milligan must necessarily have suspected that Mr McCarthy’s purpose in cleaning up was to assist the principal offender escape apprehension or prosecution.

    Conclusion

1. I accept the evidence of Senior Constable Milligan and Constable Lyons that before and during their conversations with Mr McCarthy they did not reasonably suspect Mr McCarthy of having committed an assault. Objectively, they did not have reasonable grounds to hold such a suspicion. The conversations were in the nature of preliminary enquiries in the investigatory stage and did not approach interrogation or an accusatory stage. It was not unfair to Mr McCarthy to admit evidence of the conversations by reason of no caution having been given or information being withheld by the police from Mr McCarthy concerning the nature of the matter being investigated.

   Form of record and evidence

2. Mr McCarthy invoked the unfairness discretion in contending that in the circumstances it was incumbent upon Senior Constable Milligan and Constable Lyons to:

   1.record in their notes the questions and answers asked of and given by Mr McCarthy rather than a summary in narrative form of what they were told; and/or

   2.show their notes to Mr McCarthy for verification or comment,

   and their failure to do so lead to unfairness to Mr McCarthy that should result in exclusion of the evidence of the conversations.

   Form of record and of evidence of conversation

3. In McLachlan v Opie,[35] McLachlan called at a police station to report a collision in which he was dazed as a result of a blow to his head. Constable Testro interrogated him for at least an hour with a view to charging him with drunken driving. Constable Testro then typed up a document in the form of a statement by McLachlan speaking in the first person as to what had occurred, which the Full Court concluded was neither a complete nor accurate record of what McLachlan had told Constable Testro and which McLachlan declined to verify. At trial, Constable Tesco was permitted by the Magistrate to refresh his memory from the “statement” of McLachlan compiled by him. The Full Court held that in all the circumstances this was unfair. Napier CJ said:

   Speaking generally, testimony in our courts is restricted to what the witness has seen and heard – quod vidi et audivi – and, as I see it, the suggestion that confessional evidence can be given in the form used here is subversive of the fundamental principle of trial by jury. If police officers are at liberty to cross-examine suspects, and to put the result of their interrogation – or as much of it as they see fit to record – into their own words, and to give that as a statement made by the accused, it seems to me that the determination of guilt or innocence is transferred, pro tanto, from the court to the police station. …

   It is no doubt difficult to find an authority for a proposition that has, so far as I know, always been taken as axiomatic, as it was in the case cited to us. “It could not be differed from the ordinary case of conversation, in which it could never be allowed that the answers of a party should be given in evidence against him, without also giving in evidence the questions which drew forth those answers” (Pennell v. Meyer). I think that the universal practice of our courts has always been to insist upon the witness doing his best to give the conversation as it occurred, in the words actually used as opposed to oratio obliqua. It is true that “a confession is not necessarily inadmissible on the ground that the exact words used cannot be given, but only a police officer’s recollection of them put into writing subsequently” (Archbold’s Criminal Pleading ...). But there the important word is “necessarily”, and it is going a long way to hold that the officer can do what was done here. In the same way there is no doubt that a statement taken in this way is admissible …

   It seems to me that it is a question of degree and discretion whether evidence in this form should be admitted, but, for that purpose, much may depend upon the way in which it has been obtained, and the purpose for which it is tendered …

   ...

   Now I see no objection to the police recording only so much of the information, that they obtain, as suits their purpose, or to their recording it in any form that they see fit, but I think the form in which this “eclectic” record was composed and presented precludes its reception as a voluntary confessional statement. For that purpose, the prosecutor had to satisfy the court that it had been made voluntarily – in the exercise of a free choice (McDermott v. The King), and I fail to see how the court could be satisfied of that, when it appeared that whatever the defendant had said was elicited in the course of interrogation, and that the police officer had deliberately refrained from following the recognised practice, which is to record and disclose questions put to the party and his answers, as completely and accurately as circumstances will permit.[36]

   (Footnotes omitted)

   [35] [1957] SASR 53.

   [36] Ibid at 56-57, 58. See also Reed J at 66 and Abbott J at 67-69.

4. Evidence of a witness’s recollection of a conversation is admissible notwithstanding that the witness no longer recalls the precise words used during the conversation but only recalls the substance or gist of the conversation. Such evidence is not unfair merely for this reason.

5. Senior Constable Milligan made notes of his recollection of the conversations with Mr McCarthy in the very late evening of 8 June 2012. Constable Lyons made notes of her recollection of the conversations with Mr McCarthy in the very early morning of 9 June 2012. Each did not record the precise words comprising the conversation by rather the substance or gist of the conversation. In the main, each did not record their side of the conversation, but did record what according to their recollection they had been told by Mr McCarthy. They did not compare their respective notes.

6. Mr McCarthy contended that the reasoning in McLachlan v Opie[37] applied in the present case and that, without a recording of the questions put to Mr McCarthy, it is impossible to determine whether the answers provided were elicited from questions that were fairly put. In McLachlan v Opie, Constable Testro did not make notes of his recollection of what he had been told by McLachlin but rather prepared his own narrative version of a story that he attributed to McLachlan. Constable Testro was interrogating McLachlan and his investigation had moved to the accusatory stage. At the accusatory stage, the recognised practice was to record contemporaneously the questions asked and answers given. Constable Testro deliberately refrained from following that practice. McLachlan’s case was that he did not make the admissions said to have been made by him under interrogation and recorded in the “statement” prepared by Constable Testro.

   [37] [1957] SASR 53.

7. Senior Constable Milligan and Constable Lyons were only embarking on the investigatory stage and did not reach the accusatory stage during their conversations with Mr McCarthy. The story told by Mr McCarthy was short and simple and he consistently told the same story on each occasion. It was not put to Senior Constable Milligan or Constable Lyons in cross-examination on the voir dire that their account of what Mr McCarthy said was erroneous. The detail of the questions asked by Mr McCarthy was not of importance and those questions were self-evident.

8. The focus of Senior Constable Milligan and Constable Lyons was upon the welfare of the two women who resided in the house and in all the circumstances it was not unreasonable that they did not make notes at the same time as they were conversing with Mr McCarthy. In the early stages of an investigation when police are establishing if anyone has been injured and requires medical attention and the circumstances are uncertain and dynamic, it may not be practical for contemporaneous notes to be made. No relevant unfairness was occasioned to Mr McCarthy by the manner and timing of the making of notes by Senior Constable Milligan and Constable Lyons of their conversations.

   Verification of notes

9. In Driscoll v The Queen,[38] the police wrongly refused to allow Driscoll’s solicitor to be present while they interrogated him. They typed up records of interview but did not give a copy to Driscoll after they were made. Driscoll’s case was that he did not make the admissions said to have been made by him under interrogation and recorded in the records of interview. The trial Judge did not permit Driscoll’s solicitor, Heazlewood, to give evidence about his having been prevented from getting in touch with his client and from being present during the interrogation. The High Court held that Heazlewood’s evidence was wrongly excluded and there should be a new trial. Gibbs J (Mason and Jacobs JJ agreeing) said:

   The final ground on which the application is made is that three unsigned records of interview made on the 6th and 8th July 1974 respectively were wrongly admitted into evidence. It was submitted that the learned trial judge should have rejected the tender of these records, because the police conducting the interviews refused to allow the solicitor for the applicant to be present, and failed to give a copy of the records of the interview to the applicant forthwith after they were made. If the police did prevent the applicant from seeing his solicitor (the learned trial judge made no finding on that question) their conduct was not only reprehensible but, as I have said, was a matter to be considered by the jury in deciding whether the answers recorded in the records of interview were in fact given. It is the fair and proper practice to serve a copy of a record of interview upon an accused person as soon as practicable after it is made and the failure to do so may give rise to the suspicion that the record has been altered; that also will be a matter to be considered by a jury if called upon to decide whether the record is a true one: see Reg. v. Dugan. However neither a failure to allow the solicitor to be present nor a failure to make a record of the interview immediately available to the applicant would in itself render evidence of the interrogation inadmissible, although it might be a ground for the judge to reject the confession in the exercise of his discretion if he regarded it as unfair to allow it to be used.[39]

   (Footnotes omitted)

   [38] (1977) 137 CLR 517.

   [39] Ibid at 539-540.

10. In Coleman v Zanker,[40] police officers unlawfully searched Coleman’s car and found a knife. Constable Mensforth then interrogated Coleman without administering a caution. The Magistrate excluded evidence of the interrogation because she found that a caution should have been given, a conclusion upheld by Olsson J on appeal. Constable Mensforth made notes of her conversation with Coleman while he was still present at the police station but did not show them to him for verification. Coleman’s case was that both the notes and Constable Mensforth’s account of the conversation were not an accurate or complete account of the conversation. Olsson J said:

    ... There was, as Mr English of counsel for the appellant put it, a substantial basis for viewing the notes of the conversation made by Constable Mensforth with considerable reservation, both as to their comprehensiveness and accuracy.

    Not only was she really unable to assert that they recorded the full conversation between herself and the appellant …, but she also deliberately refrained from affording the appellant the opportunity of perusing and signing or criticising him, when both Constable Mensforth and the appellant were at the police station. Her explanation for failing to do so, as recorded at p 12 of the transcript, verges on the incredible. …

    ...

    Further, it must be said in the plainest terms that the views expressed by Constable Mensforth as to her understanding of her obligations and departmental policy are not in accord with the attitude expressed by the courts as to the procedure proper to be adopted. Where notes of alleged conversations are made and the alleged maker of statements is readily available they ought to be put to the maker for either confirmation or objection as to their accuracy: see Driscoll v The Queen. A failure so to do could well lead to conclusions, in many cases, adverse to their use or the probative value of the evidence based upon them.[41]

    (Citations omitted)

    [40] (1991) 58 SASR 7.

    [41] Ibid at 16.

11. Mr McCarthy contended that the reasoning in Driscoll v The Queen[42] and Coleman v Zanker[43] applied in the present case. In each of those cases, the police interrogated the defendant and the investigation had moved to the accusatory stage; the interrogation was lengthy; the defendant’s case was that the records or notes of the conversation were false and they were prepared in the presence of the defendant but not shown to him.

    [42] (1977) 137 CLR 517.

    [43] (1991) 58 SASR 7.

12. In contrast, the conversations between Senior Constable Milligan and Constable Lyons and Mr McCarthy were in the investigatory stage; they were relatively brief; it was not put to the police officers that their account of the story told by Mr McCarthy was erroneous; their focus was upon the welfare of the two women who resided in the house and they did not make their notes until after Mr McCarthy had been driven home. No relevant unfairness was occasioned to Mr McCarthy by the manner in which Senior Constable Milligan and Constable Lyons made their notes of the conversations.

    Obligation to record interviews with suspects

13. Mr McCarthy contended that Senior Constable Milligan and Constable Lyons suspected, or had reasonable grounds to suspect, him of having committed an indictable offence but failed to record their interviews of him on videotape, audiotape or by contemporaneous written record in contravention of section 74D, rendering evidence of the interviews inadmissible by reason of section 74E of the Act.

14. Section 74D(1) as at June 2012 provided:

    An investigating officer who suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:

    (a)     if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;

    (b)     if it is not reasonably practicable to record the interview on videotape but it is reasonably practicable to record the interview on audiotape, an audiotape recording of the interview must be made;

    (c)     if it is neither reasonably practicable to record the interview on videotape nor reasonably practicable to record the interview on audiotape—

    (i)a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and

    (ii)as soon as practicable after the interview, the record must be read aloud to the suspect and the reading must be recorded on videotape; and

    (iii)when the videotape recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and

    (iv)if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and

    (v)at the end of the reading, but while the videotape recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and

    (vi)if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the error or omission asserted by the suspect in an addendum to the record of interview.

    and section 74C defined “interview” to include a conversation.

15. Section 74E(1) as at June 2012 provided:

    In proceedings for an indictable offence, evidence of an interview between an investigating officer and the defendant is inadmissible against the defendant unless—

    (a)     the investigating officer complied with this Part; or

    (b)     the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer's non-compliance.

16. Section 5 of the Summary Procedure Act 1921 (SA) as at June 2012 defined an indictable offence to be an offence other than a summary offence and relevantly defined a summary offence to be an offence for which a maximum penalty of, or including, imprisonment for two years or less was prescribed. Basic common assault[44] was a summary offence. Aggravated common assault[45] was an indictable offence, as was assault causing harm,[46] causing harm with intent to cause harm[47] and causing harm recklessly.[48] Assisting an offender in which the principal offender committed common assault or assault causing harm was a summary offence. Assisting an offender in which the principal offender caused harm with intent to cause harm or cause harm recklessly was an indictable offence.

    [44]   Criminal Law Consolidation Act 1935 (SA) ss 20(1) and 20(3)(a) prescribing a maximum penalty of imprisonment for two years.

    [45]   Criminal Law Consolidation Act 1935 (SA) ss 20(1) and 20(3)(b) or (c) prescribing a maximum penalty of imprisonment for three or four years.

    [46]   Criminal Law Consolidation Act 1935 (SA) s 20(4) prescribing a maximum penalty of three, four or five years.

    [47]   Criminal Law Consolidation Act 1935 (SA) s 24(1) prescribing a maximum penalty of 10 or 13 years.

    [48]   Criminal Law Consolidation Act 1935 (SA) s 24(2) prescribing a maximum penalty of five or seven years.

17. I have found that, before and during their conversations with Mr McCarthy, Senior Constable Milligan and Constable Lyons did not reasonably suspect that Mr McCarthy had committed an assault. I concluded that at these times they did not have reasonable grounds to suspect Mr McCarthy of having committed an assault. I have concluded that at these times they did not suspect, or have reasonable grounds to suspect, Mr McCarthy of having committed the offence of assisting an offender.

18. It follows that Senior Constable Milligan and Constable Lyons did not contravene section 74D, and evidence of their conversations was not rendered inadmissible by section 74E of the Act.

    Rights upon apprehension

19. Mr McCarthy contended that, although he was not arrested or told that he was arrested, Mr McCarthy was apprehended within the meaning of section 79A of the Act but was not informed of his rights or given the warning required by section 79A(3).

20. Section 79A as at June 2012 relevantly provided:

    (1)Subject to this section, where a person is apprehended by a police officer (whether with or without a warrant)—

    (a)the person is entitled to make, in the presence of a police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts; and

    (b)where the person is apprehended on suspicion of having committed an offence—

    (i)the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subjected while in custody; and

    (ii)if English is not the person's native language—the person is entitled, if he or she so requires, to be assisted at an interrogation by an interpreter; and

    (iii)the person is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law).

    …

    (3)A police officer must, as soon as is reasonably practicable after the apprehension of a person—

    (a)inform that person of his or her rights under subsection (1); and

    (b)warn the person that anything that he or she may say may be taken down and used in evidence.

21. In R v Conley,[49] King CJ (White and Cox JJ agreeing) said:

    A person is apprehended for the purpose of ss. 75 and 78(1) 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 enquiries and the suspect voluntarily complies. Such an invitation or requested does not amount to deprivation of liberty, 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.[50]

    (Citations omitted)

    [49] (1982) 30 SASR 226.

    [50] Ibid at 239-240.

1. Mr McCarthy contended that he was at no stage told that he was free to leave and, given the circumstances in which the police entered the townhouse, it was incumbent upon them to make it clear to him that he was not under arrest and, in the absence of such an intimation, a reasonable person in his position would consider that he was under apprehension.

2. 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.

3. After the fourth conversation, Senior Constable Milligan asked Mr McCarthy to remain in the lounge while he made enquiries and surveyed the scene. I address the question whether this amounted to an apprehension below when dealing with the conversations between the detectives and Mr McCarthy.

   Conclusion

4. There was no basis to exclude the evidence of Senior Constable Milligan and Constable Lyons of their conversations with Mr McCarthy.

   Conversations with Detectives Gourd, Cullinan and Minchenberg

5. 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.

   Unlawful entry

6. Mr McCarthy contended that the conversations with the detectives should be excluded in the exercise of the unlawfulness discretion because they resulted from the unlawful entry by Senior Constable Milligan and Constable Lyons of the premises.

7. I have concluded that the entry by Senior Constable Milligan and Constable Lyons was lawful, and therefore it followed that I rejected this ground of challenge.

   No caution

   Requirement for caution

8. Detectives Gourd, Cullinan and Minchenberg each received briefings about the investigation before they spoke to Mr McCarthy. While there were variations in the content of the briefings, in general terms the detectives were relayed the information that had been learnt by Senior Constable Milligan and Constable Lyons.

9. Detectives Gourd and Minchenberg gave evidence that, immediately before and while they were speaking to Mr McCarthy, they did not suspect him of having committed an assault. They gave evidence that their focus was upon locating the two women and in ensuring their welfare. Detective Minchenberg gave evidence that he did not turn his mind to Mr McCarthy having committed the offence of assisting an offender.

10. Detective Cullinan gave evidence that Mr McCarthy was not a suspect and she did not suspect him of having committed an assault. However, she suspected that he had information relating to the events that had happened at the address, that he either had knowledge that an assault had taken place or he was involved in an assault that had taken place at that address involving the women. She suspected that Mr McCarthy knew more about what had taken place than what he had conveyed to the police to that point.

11. Each of Detectives Gourd, Cullinan and Minchenberg were cross-examined on the circumstances known to them. It was put to them that their evidence that they did not suspect that Mr McCarthy had committed an assault or a serious assault was false. I found each to be a credible witness and accepted their evidence that they did not reasonably suspect that Mr McCarthy had committed an assault, although they did suspect that he had more information concerning an assault committed by another person or persons than he had so far conveyed. In particular, I found that Detective Cullinan did not suspect that Mr McCarthy himself had committed an assault; rather she suspected that he had either been told about an assault or had witnessed it and had attempted to break it up.

12. The evidence of each of Detectives Gourd, Cullinan and Minchenberg was corroborated by their conduct during their conversations with Mr McCarthy. Their questions were focused on locating and the welfare of the two women and not upon Mr McCarthy’s conduct except insofar as it bore on those matters.

13. While the detail of the briefings provided to the detectives differed between themselves and differed from the observations of and information obtained by Senior Constable Milligan, from the perspective of each of the detectives objectively there were not reasonable grounds to suspect Mr McCarthy of having committed an assault for essentially the same reasons as in respect of Senior Constable Milligan.

14. It was put in cross-examination to Detective Minchenberg, that he must have suspected that Mr McCarthy had committed the offence of assisting an offender. Detective Minchenberg denied that this crossed his mind. I accepted that evidence. I accepted that the focus of the investigation was on locating the two women who resided in the house and in ensuring their safety and not on any criminal conduct by Mr McCarthy. The evidence of Detective Minchenberg in this regard was corroborated by his conduct in that he did not question Mr McCarthy on the topic of assisting an offender.

15. From the perspective of the detectives, in the absence of their believing that a major crime had occurred, objectively there were not reasonable grounds to suspect that Mr McCarthy had committed the offence of assisting an offender for essentially the same reasons as in respect of Senior Constable Milligan.

16. The recordings of the three conversations with the detectives, and the earlier recordings from the time when the camera was first activated, show that the focus of the police was on locating and ensuring the welfare of the two women and that the matter was in the investigatory stage and did not approach an accusatory stage.

17. If Mr McCarthy had not been cautioned, it would not have resulted in the admission of evidence of the conversations being unfair.

    Existence of caution

18. Detective Cullinan gave evidence that, at the beginning of her conversation with Mr McCarthy at 9.20 am, she reminded Mr McCarthy that he was still under caution and that he obviously did not have to answer any questions that she was going to put to him. Mr McCarthy contended that I should reject this evidence because Detective Gourd did not recall whether or not Detective Cullinan gave any form of caution to Mr McCarthy and the two other police officers present were not called to give evidence. I accepted Detective Cullinan’s evidence about what she said at the outset of the conversation. However, it was clear that this in itself was not an adequate caution and, if a caution had been required, it would not have sufficed.

19. Mr McCarthy was cautioned by Senior Constable Milligan at 6.45 am. Mr McCarthy contended that he ought to have been cautioned before the conversations with Senior Constable Milligan and the lack of an earlier caution vitiated all subsequent conversations. I have concluded that in all the circumstances there was no requirement for an earlier caution.

20. Mr McCarthy contended that the caution given by Senior Constable Milligan at 6.45 am was inadequate. A standard caution would be in words to the effect that Mr McCarthy was not obliged to answer any questions and any answers he did give would be recorded and might be given in evidence. The caution given by Senior Constable Milligan was in a different order, namely that the conversation was being recorded, it might be given in evidence and he was not obliged to answer any questions. However, all of the elements of the standard caution were present and in all the circumstances it was an adequate caution.

21. Mr McCarthy contended that, leaving aside the caution, he ought to have been informed of the nature of the offences being investigated by the police. There was no evidence that the police had gathered any information beyond that known to Mr McCarthy. Mr McCarthy knew more than they did about what had occurred. There was no information that the detectives were obliged, as a matter of fairness, to disclose to McCarthy before speaking to him on each occasion.

    Rights upon apprehension

22. Mr McCarthy contended that, although he was not arrested or told that he was arrested, he was apprehended within the meaning of section 79A of the Act but was not informed of his rights or given the warning required by section 79A(3).

23. On the one hand, by the time he spoke to Detective Gourd sometime after 8.40 am, Mr McCarthy had been in the continuous presence of police officers for about three and a half hours since about 5.15 am; the camera had been activated for about three hours since 5.37 am; and Mr McCarthy was not told that he was free to leave. On the other hand, Mr McCarthy simply remained at the premises rather than being taken, for example, to a police station; he was not told at any point that he was not free to leave; and ostensibly Mr McCarthy and the police had a common interest in working together to locate and ensure the safety of the two women who lived in the house. Mr McCarthy did not give evidence on the voir dire that he considered that he was not free to leave.

24. In all the circumstances, Mr McCarthy was not apprehended within the meaning of section 79A of the Act.

    Conclusion

25. There was no basis to exclude the evidence of Detectives Gourd, Cullinan or Minchenberg of their conversations with Mr McCarthy. However, upon giving my ruling, I suggested to the prosecutor that it did not appear necessary to call each of the detectives and suggested that she consider calling only one of them. This transpired and ultimately only Detective Cullinan was called to give evidence of her conversation with Mr McCarthy commencing at 9.20 am.