R v MDR No. Sccrm-01-361
[2002] SASC 336
•8 October 2002
R v MDR
[2002] SASC 336Criminal
Ruling
The charge
WICKS J The accused is charged with shooting at a person with intent to do grievous bodily harm contrary to s 21 of the Criminal Law Consolidation Act 1935. It is alleged that on 19 June 2001 the accused, at Lonsdale, unlawfully and maliciously shot at George Douglas Thomson (“Thomson”), with intent to do him grievous bodily harm.
The prosecution case – a summary
A summary of the prosecution case is as follows. The prosecution allege that the victim, Thomson, was shot by the accused on 19 June 2001 at 13 Waddikee Road, Lonsdale at approximately 12.30 pm. The prosecution allege that the accused used a Magolin .22 calibre pistol, which has been given police exhibit number RK29, in shooting Thomson.
Evidence which the prosecution intend to lead to identify the accused as the shooter of Thomson is as follows.
On 18 June 2001 police recovered a green Commodore sedan, registration number UGX 402, which at the time was bearing false registration plates VBS 582 on Panatalinga Road, Woodcroft. Examination of that vehicle on 19 June led to the recovery of a spent cartridge case which became Exhibit VSB1. Several other items were discovered in this vehicle which tend to suggest that the accused had been present in the car at some stage, including a Benson Radiology examination request in the name of the accused, and two drivers’ licences in the name of Darrell A Evans but bearing the photograph of the accused. There was also a card written to “Tammy”, who it can be inferred is Ms Tammy Daley (“Daley”), the accused’s girlfriend at the time.
On 19 June 2001 Thomson was shot. Spent cartridge cases and a bullet were recovered from the scene of the shooting of Thomson and were subsequently given police exhibit numbers GT1, GT2 and GT3.
All recovered spent cartridge cases have been tested by police ballistics officers Sergeant Maiden and Senior Constable Lawrence and compared with test cases from Exhibit RK29. The report of Senior Constable Lawrence dated 5 October 2001 indicates that Exhibits VSB1 and GT1 and were fired from Exhibit RK29 to the exclusion of all other firearms. GT2 and GT3 could not be conclusively identified as emanating from Exhibit RK29.
On the evening of 29 June 2001 and early morning of 30 June 2001 the accused was involved in a siege situation with police at a hotel known as the Adelaide Manor Motor Inn. The accused was arrested at the Adelaide Manor Motor Inn on the morning of 30 June 2001. Prior to his arrest he was seen in possession of Exhibit RK29. This evidence is drawn from the statements of Senior Constable Miller dated 21 August 2002 and Sergeant Ian Browne dated 26 August 2002. Exhibit RK29 was found in room 23 of the Adelaide Manor Motor Inn by police on the morning of 30 June 2001. Live rounds of ammunition, capable of being fired from Exhibit RK29 were found in room 23 during the search of that room on the morning of 30 June 2001.
The prosecution also rely on a statement of Mr Michael Ravlic (“Ravlic”) dated 30 August 2002. In his statement Ravlic states that the accused was in possession of Exhibit RK29 at the time he entered the motel room at the Adelaide Manor Motor Inn on 29 June 2001. He also indicates that the accused made admissions to him in relation to two other incidents namely, an armed robbery at the Power State Credit Union at the Southgate Shopping Plaza, Hilliers Road, Morphett Vale on 28 June (“the armed robbery”) and a drive-by shooting at 1/70 East Avenue, Black Forest on 16 June 2001 (“the drive-by shooting”). Ravlic also gives evidence of witnessing the accused purchasing Exhibit RK29 on or about 16 June 2001.
There is other evidence which the prosecution say proves circumstantially that the accused was in possession of Exhibit RK29 on or about 19 June 2001. The accused objects to the admission of this evidence on the basis that it is propensity evidence.
The prosecution seeks to rely on evidence of the drive-by shooting from which spent cartridge cases Exhibits VOP1 - VOP5 were recovered.
The prosecution further seeks to rely on evidence of the armed robbery from which spent cartridge case Exhibit PSC1 was recovered from the premises of the Power State Credit Union. The report of Senior Constable Lawrence indicates that PSC1 and VOP1-VOP5 were fired from Exhibit RK29 to the exclusion of all other firearms.
Further evidence in relation to the armed robbery includes a red and blue baseball cap which was found in room 23 at the Adelaide Manor Motor Inn and which, on the prosecution case, is the baseball cap worn by the offender who committed armed robbery. That baseball cap has been examined and forensic testing indicates the presence of two types of DNA, the major type being that of the accused.
The Rule 9 Application
The accused’s r 9 application sought an order excluding the evidence of alleged conversations between the applicant and the police firstly at the time of his arrest on 30 June 2001 and secondly of the video/audio tape recorded interview between police officers Detective Acting Sergeant Paul Anthony Yeomans (“Yeomans”), Detective Senior Constable Scott Merrett (“Merrett”) and the accused conducted at the Christies Beach Police Station on Friday 6 July 2001 between 12.40 pm and 1.25 pm and 1.50 pm until the interview was completed on 6 July 2001.
However, in a document entitled “Summary of Submissions by the Applicant regarding the Amended Rule 9 Application” the order sought was expanded to include:
"An order excluding evidence of conversations alleged between the applicant and the police on 30 June 2001 up to and including 24 July 2001."
It is on this basis that I have written this ruling.
The grounds relied in relation to the order being sought are as follows:
"(a)In relation to both conversations, they were “interviews” within the meaning of Section 74C of the Summary Offences Act. The police were in breach of Section 74D of the Summary Offences Act in failing to comply with sub-section (1).
(b)In relation to the second conversation there was an unrecorded conversation that preceded the video/audio record of interview which commenced at 12.40pm on Friday 6 July 2001 at the Christies Beach Police Station. The earlier conversation was also at the Christies Beach Police Station.
(c)That unrecorded conversation was not noted by the police officers, nor was it recorded in any form pursuant to Section 74D (1).
(d)That unrecorded conversation between the applicant and the police included statements made by police in the form of inducements and bargaining resulting in an involuntary record of interview.
(e)In the alternative the police, in the course of the video/audio interview acted unfairly and improperly by making assertions of fact that were not true, such as:
Q.15 - that Thompson[sic] had identified the applicant as the person that shot him on 19 June 2001;
Q.83 - that Thompson[sic] had identified the applicant as the person that shot him on 19 June 2001;
Q.148 - that the police had matched the cartridge cases from the drive by shooting on 16 June 2001 (Ex VOP1-5), the cartridge case from the vehicle suspected of having been used in that offence (Ex VSB1), with the cartridge cases from the Thomson shooting (Ex GT1, 2) and the Power State Credit Union armed robbery (Ex PSC1).
(f)The answers by the applicant to the questions regarding those offences were therefore obtained unfairly and improperly, rendering the answers involuntary, as being given in answer to incorrect assertions of fact, rendering the answers unreliable."
On the voir dire, various police officers from the Christies Beach Police Station and the Sturt Police Station were called to give evidence in relation to this issue. They included Yeomans, Merrett, Senior Constable Copley (“Copley”), Detective Senior Sergeant Johnson (“Johnson”), Senior Constable Fraser (“Fraser”) Detective Senior Sergeant Heath (“Heath”) and Detective Sergeant Roy (“Roy”). The accused did not give evidence on the voir dire.
Arrest of the accused on 30 June 2001 (“the first conversation”)
Yeomans was present at the time the accused was arrested following a siege at the Adelaide Manor Motor Inn on the evening of 29 June 2001 and early morning of 30 June 2001. He was present when the accused was taken to the City Watch House in the early morning of 30 June 2001. In examination in chief he gave evidence that there was no attempt to interview the accused immediately after the arrest. This was not contested in cross examination. It was not contested that the conversation which took place upon the arrest of the accused was not recorded and not read back to the accused on a videotape recording.
Copley was present when the accused was arrested and attended with Yeomans in the transportation of the accused to the City Watch House. He confirmed that there was no attempt to interview the accused immediately after his arrest.
Events at the City Watch House on 1 July 2001 (“the second conversation”)
On Sunday 1 July 2001 Yeomans, Johnson, Merrett and Copley attended at the City Watch House where the accused was being held.
Yeomans gave evidence that this occurred at 9.30 am or 10 am. He gave evidence that he went to the City Watch House with the intention of giving the accused the opportunity to be interviewed. Yeomans’ evidence was that no interview was conducted. However, Yeomans gave the accused his mobile phone number and said:
"If you want to make a statement or you want to talk with us, with a lawyer, I will leave my number with the cell sergeant."
It was put to Yeomans in cross examination that this was not the full extent of the contact of police with the accused at the City Watch House on 1 July 2001:
"Q... ‘You need to start thinking about clearing up some of these issues’. Do you remember Senior Sergeant Johnson mentioning that.
A No, I don’t.
Q[The accused] responded with words to the effect of ‘Well, what are you talking about? I’m not interested in clearing anything up with you’. Do you remember that being said by [the accused].
ANo, I don’t.
QAnd Senior Sergeant Johnson responded with words to the effect ‘Then we’ll drag in your associates and start charging them’. Do you remember Senior Sergeant Johnson telling him that.
ANo, I don’t.
Q[The accused] responded with words to the effect of ‘If you had any idea who my associates are, you would have dragged them in weeks ago, but you didn’t, so you don’t know, you’ve got fuck all. What associates?’. Words to that effect. Do you remember [the accused] saying that to Senior Sergeant Johnson.
ANo, I don’t.
QSenior Sergeant Johnson then responded with words to the effect ‘Well, there’s your mate Ravlic and Tammy’. Do you remember that being said by Senior Sergeant Johnson.
ANo, I don’t."
Johnson attended in the cell area with Yeomans on 1 July 2001. His account of what happened on that morning is as follows:
"A… Detective Yeomans and I went to a cell where [the accused] was being held. … He complained that he was not being treated properly at the cells. … It was obvious at that time that [the accused] did not wish to speak to us and we did not pursue that course. We left the cells."
It was Johnson’s evidence that he and Yeomans were only in the cell area for a period of four minutes.
It was put to Johnson in cross examination that threats had been made by him on this occasion:
"QSo do you agree or disagree that you said words to the effect ‘Well, we’ll drag in your associates and start charging them’.
A I totally disagree with that.
…
Q… that’s why I suggest you were there … because if [the accused] decided he wasn’t going to cooperate about giving an interview you made a threat to him that if he didn’t start clearing up some of the matters you would involve his associates Ravlic and his girlfriend Daley; …
A No, no threats were made."
It was the evidence of Merrett that he and Copley waited in the office area of the Watch House while Johnson and Yeomans entered the cell to speak with the accused. Johnson and Yeomans were in the cells for approximately five to ten minutes before they returned and informed the other officers that the accused declined to be interviewed.
Copley’s evidence was that he never spoke to the accused at the City Watch House but waited at the charging desk area while Yeomans and Johnson went into the cell area to speak to the accused. He stated that Yeomans and Johnson were only in the cell area for “several minutes” or “up to 15 minutes”.
Telephone conversation between Yeomans and the accused on 5 July 2001 (“the third conversation”)
The next contact that Yeomans had with the accused was on 5 July 2001, the day before the record of interview took place. He gave evidence that the accused rang him on 5 July and “made it clear that he wished to speak to us in respect to the charges”. It was later ascertained in cross-examination that Yeomans completed an Authority To Remove A Prisoner From a Correctional Institution, pursuant to s 28 of the Correctional Services Act 1982, on 4 July 2001. Yeomans conceded that it must have already been arranged that the accused would be removed for the purposes of an interview on 6 July 2001, prior to his phone call to Yeomans on 5 July 2001.
An audio tape of the conversation that took place between the accused and Yeomans confirmed that it had already been arranged that the accused would be removed from the Adelaide Remand Centre (“ARC”) on 6 July 2001.
Events at Christies Beach Police Station on 6 July 2001
On 6 July 2001 Yeomans and Merrett attended at the ARC for the purpose of collecting the accused and taking him to the Christies Beach Police Station for an interview.
The timing of events on this day is important and several documents were tendered on the voir dire in relation to this. The first document is the Authority to Remove a Prisoner from a Corrrectional Institution dated 4 July 2001 which indicates that Yeomans had approval to collect the accused from the ARC after 10.30 am. The second document is an Escort Movement Report in relation to the accused which indicates that on 6 July 2001 a Dog Squad escort service commenced duties at 11.05 am at the ARC and completed duties at 3.25 pm, presumably when the accused was returned to the ARC.
The video record of interview with the accused commenced at 12.40 pm. Evidence was given by Yeomans that it would take approximately 40 to 45 minutes to drive from the ARC to the Christies Beach Police Station. Yeomans was cross-examined as to what happened in the period of time which was unaccounted for. Yeomans explained this discrepancy by saying that “I would suggest we left the ARC more like quarter past, twenty past 11 as opposed to five past 11”. Merrett gave evidence that at the ARC there was a ten to fifteen minute delay as a result of the accused declining to leave the ARC in prison issued clothing and having to change into his own clothing. Both officers gave evidence that upon arrival at the Christies Beach Police Station, the accused indicated that he was hungry and Yeomans arranged for some food to be obtained for the accused from the McDonald’s directly across the road from the police station.
However, even allowing for delays at the ARC and taking into account that the journey may have taken slightly longer than the 45 minutes estimated by Yeomans, the group consisting of Yeomans, Merrett and the accused would have arrived at the Christies Beach Police Station at about 12.00 noon or shortly thereafter. This raises the question of what occurred between the arrival of the accused and the commencement of the video interview at 12.40 pm.
“Off the record” conversation (“the fourth conversation”)
Yeomans gave evidence in examination in chief that during the course of the day, two admissions were made by the accused which were not recorded by video. The first was said to have taken place prior to the commencement of the record of interview at 12.40 pm:
"QDid [the accused], at any stage prior to the tape commencing, make any comments about his involvement in any offending.
AYes. He indicated he was responsible for the shooting of Thomson prior to the activation of the tapes.
QWhat did he say.
AHe said something like ‘George asked for it. He owed me some money and I doubt if this will get past the committal’.
QDid you respond to that.
AI said ‘Hang on, we will get the tapes going’ or something like that."
The second admission was said to have been made during the break between the completion of the record of interview and the forensic procedure which took place shortly after. Yeomans’ evidence was that this took place in the quadrangle at the Christies Beach Police Station
"A... it was outside while [the accused] was having a cigarette that he mentioned something in respect to that Credit Union hold up.
Q Can you remember what he mentioned about it.
AThere was a firearm discharged during the hold up and [the accused] said something like ‘I didn’t mean the gun to go off’ or something like that.
QDid you ask any questions in response to that. What did you do after he said that.
AWell, all I said to him is ‘We can’t talk about that because we are not in an interview, it’s not being recorded’."
Heath was called to give evidence in relation to this topic. His evidence was that he crossed the quadrangle where the accused, Yeomans and Merrett were standing and he thought he gave the accused a cigarette. He could not remember specific details of any conversation he had on this occasion but he gave evidence that it was his understanding that no admissions had been made by the accused.
Counsel for the accused put to Yeomans that a much longer conversation actually took place at the Christies Beach Police Station, which was unrecorded and therefore contrary to s 74D of the Summary Offences Act. The cross examination of Yeomans in relation to this particular incident was extensive and I do not propose to quote it in its entirety, however, the main allegation was as follows:
"QWhat I’m saying is there was a conversation, without being exact, between the three of you - that is Merrett, yourself and [the accused] - that went for about 20, possibly a bit more, possibly a bit less, minutes prior to the video and audio tape being activated at 12.40 p.m.
A No.
QAll right. And that Mr Merrett, as I have indicated to you, in your presence, and yourself, made comments in an attempt to induce [the accused] to make admissions to offences.
ANo.
QMr Merrett, in your presence, and with your concurrence, included in those inducements a threat to involve other people; namely, Tammy Daley and Michael Ravlic in the matters if [the accused] didn’t co-operate and make admissions.
ANo.
QAnd that, for instance, from yourself, there was a suggestion that the Thomson shooting could go away, because you wanted him on the armed robbery, or words to that effect.
ANo.
QWhich again, I suggest, was an inducement made by you to get or attempt to get [the accused] to make admissions to certain offences.
ANo."
In relation any “off the record” admissions made by the accused the evidence of Merrett differed significantly from that of Yeomans. Merrett gave evidence that a conversation of “about 15 to 20 minutes" took place prior to the record of interview commencing at 12.40 pm. He could also not recall any admission being made to the armed robbery in the break between the two interviews. Instead, Merrett had a memory of an admission being made to the shooting of Thomson and to several other offences. His memory was that this conversation took place while the accused was eating the lunch which had been purchased for him. His evidence in relation to this topic was as follows:
"Q... was there any discussion ... about the allegations or charges.
AYes, there was just prior to the interview. [The accused], quite surprisingly to me came out and discussed the shooting. He made admissions to the shooting at Lonsdale, basically stated -
...
AHe basically stated that he didn’t expect the matter to get past committal; the victim in the matter George Thomson, who had been shot, he did not expect to give evidence against him. And he also went on to explain ... he had gone there in relation to a drug debt. Thomson had owed him money in relation to a drug debt. On his arrival, he was confronted by Thomson who was holding an iron bar. Thomson came at him. [The accused] was in possession of a pistol, which he produced and shot Thomson in the legs.
...
QApart from the shooting, did [the accused] speak of any other matters prior to the interview commencing.
AYes, he made admissions to several other matters ... following the shooting I spoke to him about a matter, an assault of a police officer, which occurred in May 2001 at Torrens Park ...
...
QWere there any other topics discussed before the video recorded interview commenced.
A... he explained to me that he used to dress in a fireman’s uniform to enter chemist shops to obtain Sudafed."
As with Yeomans, cross examination in relation to the conversation which took place prior to the commencement of the record of interview at 12.40 pm was extensive. However, the main allegation was as follows:
"Q... You said words to the effect of ‘My instructions are to inform you that if you don’t co-operate and make admissions to offences you’ve committed then we’ll be pulling in all the persons that either helped you or were involved’.
A No. I never made that remark at all.
QIt wouldn’t be the case that you’d been told to put that to [the accused] by Detective Senior Sergeant Johnson.
A No.
...
QAnd [the accused] responded with words to the effect of ... If you knew who helped me’ ... ‘you’d have had them already under arrest’.
ANo.
QAnd that you responded, I suggest, ‘Well there’s Mick Ravlic and Tammy, they’re not in the clear’ or words to that effect.
ANo. No inducements were made at all."
Several police officers gave evidence which corroborated evidence that there had been some kind of off the record admission made by the accused. It was ascertained in cross-examination that Yeomans told Copley about an “off the record” admission in relation to the shooting of Thomson. The evidence of Fraser was that Yeomans had told her of an admission to the armed robbery. Roy gave evidence that he had a recollection that either Fraser or Yeomans had told him that:
"there were words spoken by [the accused] which implicated his involvement in the shooting."
The record of interview commencing at 12.40 pm (“the fifth conversation”)
In the video recorded record of interview the accused refused to answer questions in relation to the shooting of Thomson, the armed robbery and the assault of a police officer. He did make admissions to some less serious offences and was charged with one count of aggravated serious criminal trespass, one count of non-aggravated serious criminal trespass, receiving stolen property, property damage, discharging a fire arm and several counts of illegal use of a motor vehicle.
Several of the offences admitted to are of particular importance to the prosecution case. The admission to one of the counts of illegal use of a motor vehicle was in relation to the green commodore sedan, registration number UGX 402. The charges of property damage and discharging a fire arm related to the accused’s admission that he committed the drive-by shooting from which spent cartridge cases Exhibits VOP1-VOP5 were recovered.
Events at the ARC on 13 July 2001 (“the sixth conversation”)
Yeomans had further contact with the accused on 13 July 2001 when he attended at the ARC with Fraser for the purpose of ascertaining whether or not the accused would participate in an identification parade in relation to the armed robbery:
"QLet me take you then to 13 July at the Adelaide Remand Centre, when you attended with Ms Fraser. You made notes of that conversation with [the accused] about a line-up, didn’t you.
...
Q... you knew the importance of recording it, where reasonably practicable, the best way being by video with audio; correct.
AYes.
QIf that wasn’t possible the next reasonably practicable option was an audio recording; correct.
AThat’s right.
Q.And the third option was, of course, handwritten notes, to be made at the time of the conversation, and then read back at the end of the conversation; correct.
AThat’s right.
QAnd at a later stage to have it placed on video, and have that conversation read back to the suspect and asked for his comments; correct.
AThat’s right.
QAnd none of that happened, did it.
ANo."
These notes were never played back to the accused on videotape.
Fraser gave evidence that she took a video camera to the ARC for the purpose of recording any conversation that took place with the accused however a recording was not ultimately made:
"A I had taken a video recorder to the Adelaide Remand Centre.
Q Was that used.
A No, it wasn’t.
Q And why was that.
AThe size of the room was very small. Given my knowledge of [the accused’s] history, I didn’t want to be holding a camera up in front of my face in that vicinity."
Fraser gave evidence that she returned to the ARC on 23 July 2001 to advise the accused of arrangements which had been made for an identification parade and also to read back the notes of the conversation which was had on 13 July 2001. However, on this occasion Fraser was advised that the accused did not wish to speak with her. She subsequently contacted the ARC on 24 July 2001 and was again informed that the accused did not wish to speak with her.
The Recording of Interviews
Section 74C of the Summary Offences Act defines an interview to include a conversation or part of a conversation or a series of conversations.
Section 74D(1) of the Summary Offences Act 1953 reads as follows:
"74D.(1) 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."
Section 74E of the Summary Offences Act reads as follows:
"74E. (1) 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 Division; or
(b)the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer’s non-compliance.
(2) If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b), the court must -
(a)draw the jury’s attention to the non-compliance by the investigating officer; and
(b)give an appropriate warning in view of the non-compliance,
unless the court is of the opinion that the non-compliance was trivial."
The first issue to be determined is whether all or some of the conversations comprise interviews within the meaning of s 74C. If a number of the conversations comprise a series of conversations then the requirements of s 74D must be complied with in relation to each conversation. If one of a series of conversations does not comply with s 74D then all of the conversations must be excluded or must satisfy the requirements of s 74E(b)(1) before they can be admitted.
The term “a series of conversations” has been considered by Doyle CJ in R v Blayney and Blayney [2002] SASC 192 at p 7:
"But separate conversations should be regarded as constituting the one ‘series of conversations’ only if there is some reason to do so. The matters identified by me are not, of themselves, such as to require a conclusion in every case that the conversation and the interview constitute ‘a series of conversations’ for the purposes of s 74C. It is unlikely that Parliament intended to treat as one interview all conversations with a suspect simply because, in the sense identified, they can be said to be part of the one series.
… I have no doubt that there will be circumstances in which it would be appropriate to regard successive conversations between an investigating officer and a suspect as separate interviews, and not as a single interview. It is impossible to identify in advance the circumstances in which that will be so, but that does not lessen my confidence that there will be such circumstances. Successive conversations are not necessarily part of the one series simply because they involve the same people and the same subject matter."
In relation to this case I consider that the first conversation is an interview which is separate from all others.
I do not consider that the second or third conversations are interviews for the purposes of s 74D. In relation to the second conversation, I accept the evidence of all of the police officers involved. I do not accept that any threats were made to the accused on this occasion. Both Yeomans and Johnson denied strongly that any threats were made. I accept that the police attended at the City Watch House for the purpose of interviewing the accused and upon ascertaining that the accused was in no state to be interviewed did not continue with any questioning in relation to any offences. The third conversation was instigated by the accused and no questions were put to him in relation to any offences. It was merely a conversation in which arrangements were made for the accused to be interviewed on 6 July 2001.
I consider the that the fourth and fifth conversations constitute a series of conversations and are therefore a single interview. They are very closely connected in time and it seems likely that similar topics were discussed in both.
I consider that the sixth conversation was unrelated to all other conversations in so far as evidence has been given that it dealt with the fairly discrete topic of whether or not the accused would participate in an identification parade in relation to the armed robbery.
In relation to what is meant by the phrase “in the interests of justice” it has been held that the interests of justice are best served by strict compliance with the requirements of s 74D and that good reason must be shown to override it: see R v Nayda and Nayda (1999) 203 LSJS 465 at 476. Departure from the rules governing interviews should not be lightly condoned: see R v King and Pitson (No 2) (1998) 199 LSJS 111 at 118. In R v Day Judgment No. [2002] SASC 95 Perry J said at p 4:
"In determining whether it is in the interests of justice to admit evidence obtained in circumstances where there has been a non-compliance with the Division, the answer to the questions whether non-compliance is deliberate, or the product of a reckless disregard of the statutory provisions, or is inadvertent or otherwise excusable, will be relevant. Other factors will also be relevant: for example, the cogency of the evidence, whether the content of relevant statements is disputed, and in the case of a series of conversations, whether or not only part of the series is effected by non-compliance."
In relation to the first conversation I find that there was a breach of s 74D. The conversation was not read back to the accused on video tape in accordance with the section. However, I find that this is a trivial breach of the section and find that the evidence is admissible pursuant to s 74E(1)(b).
It has been conceded by the prosecution that s 74D of the Summary Offences Act was breached as a result of the fourth conversation. There is a large divergence in the evidence of Yeomans and Merrett as to what was said during the fourth conversation. Given the unexplained gap in time between the accused’s arrival at the Christies Beach Police Station and the commencement of the fifth conversation, I consider that it is likely that Merrett’s account of the fourth conversation is more accurate than that of Yeomans’. However, on any view of the evidence I find that the fourth conversation constitutes a breach of s 74D.
The question is therefore whether the fourth and fifth conversations should be admitted in the interests of justice. It has been submitted by the prosecution that due to the seriousness of the offence and the highly probative value of some of the admissions made by the accused during the course of the fifth conversation that it would be in the interests of justice to admit the interview. It was also submitted that throughout the interview it was evident that the accused had a clear plan as to what crimes he did and did not want to admit to and that he was very eager to ensure that Daley did not receive blame for any crimes. The prosecution submitted that this led to an inference that the accused was using the interview for his own purposes. I believe there is some evidence in the interview and also in the third conversation to support this proposition.
Be that as it may, I consider that the interests of justice do not require the admission of the fourth or fifth conversations. Although the charge is serious, some of the admissions made by the accused are highly probative and there may be an element of the accused having his own agenda for participating in an interview, I do not believe that good reason has been shown to override the requirements of s74D. The police officers involved were very experienced and senior officers. The non-compliance was not inadvertent or inexcusable. Nor was it trivial. At the very least, a fifteen to twenty minute conversation took place where offences in which the accused was a suspect were discussed. This was a serious breach of s 74D. The interests of justice do not require the admission of the interview.
The sixth conversation was clearly in breach of s 74D. Reasons were given by Fraser as to why the conversation was not video or audio recorded. Hand written notes were made by Yeomans. Fraser intended to read the notes back to the accused but this was not done. In relation to this conversation I consider that the non-compliance was somewhat inadvertent and relatively trivial. I find that the sixth conversation is admissible pursuant to s 74E(1)(b).
Conclusion
For these reasons, I order that:
(1)evidence of any interview or conversation between police officers Yeomans and Merrett and the accused or with either of those police officers and the accused from the arrival of police officers Yeomans and Merrett and the accused at the Christies Beach Police Station from Adelaide on Friday 6 July 2001 until 12.40 pm and from 1.25 pm to 1.50 pm on that date be excluded from the evidence to be given at the trial of these proceedings; and
(2)the evidence of the video/audio tape recorded interview between police officers Yeomans, Merrett and the accused conducted at the Christies Beach Police Station on Friday 6 July 2001 between 12.40 pm and 1.25 pm and 1.50 pm until the interview was completed (with or without interruption) on 6 July 2001 be excluded from the evidence to be given at the trial in these proceedings.
I also order that:
The first conversation and the sixth conversation are interviews and evidence of them should be admitted in the interest of justice. The second and third conversations are not interviews and evidence of them is admissible at the trial in these proceedings. The fourth and fifth conversations have been dealt with in detail above.