R v Mekic No. DCCRM-02-46

[2003] SADC 146

R v MEKIC
[2003] SADC 146

Judge Anderson
Criminal

1. On 22 August 2003 I gave rulings at the conclusion of a voir dire hearing.  I now publish the reasons therefore.

2. By a Rule 9 Notice, dated 4 April 2003, the Accused sought to have a telephone conversation between the Accused and Senior Constable Yazarloo excluded on the basis that:

   i.      No caution was given.

   ii.     The conversation was without the assistance of an interpreter.

   iii.There was no attempt made to comply with the requirements of Section 74D Summary Offences Act, 1953.

3. Paragraphs (i) and (ii) were not proceeded with to any degree.  To the extent that they were, there was no force in the submissions.

4. Paragraph (iii) was the substantive challenge.  The content of this conversation, which occurred at about 3.20pm on 22 September 2001, was, for the purposes of this application, not in doubt.  It is to be found at page 4 of the statement of Senior Constable Yazarloo, dated 23 October 2001.

5. By the time this telephone call was answered by Senior Constable Yazarloo, I am satisfied that Mekic was a person whom he wanted to interview.  The original incident occurred at Modbury North.  Blajlovic was at the Royal Adelaide Hospital at about 4.30pm.  Senior Constable Yazarloo arrived at about 6.50pm and spoke to Blajlovic and Ms Ball about what occurred.  He and Constable Smith and Ms Ball went to the Accused’s house at Modbury North.  No one was there.

6. Senior Constable Yazarloo also went to the Accused’s other known address at Campbelltown.  He was not there.  Senior Constable Yazarloo said he left calling cards with his name and telephone number at each location on more that one occasion from 13 September 2001 onwards.

7. In addition, I am satisfied that by 3.20pm on 22 September 2001, Senior Constable Yazarloo, who had been on days off since 17 September 2001, had received the e‑mail sent to him by Constable Growden on 17 September 2001.

8. This e‑mail conveyed a message from the Accused’s solicitor.  It follows that by 3.20pm on 22 September 2001, Senior Constable Yazarloo was aware that the Accused had legal representation.

9. Thus, Senior Constable Yazarloo at that time had the obligation of Section 74D(1) of the Summary Offences Act (“the Act”) cast upon him as he suspected the Accused of an indictable offence and proposed to interview him.

10. What then occurred on 22 September 2001 on the telephone required compliance with the balance of that Section.  It is not disputed that after the conversation Senior Constable Yazarloo made a note of it.

11. I accept that it was Senior Constable Yazarloo’s intention to read his note of this conversation to the Accused in accordance with the provision of Section 74D(1)(c) at the record of interview at which the Accused and his solicitor attended at Holden Hill Police Station on 25 September 2001,

12. However, when, at that time, he asked the Accused a question about the incident, his solicitor indicated that the Accused wished not to answer any questions.  Thereafter, Senior Constable Yazarloo arrested, cautioned and processed the Accused.

13. In evidence on the voir dire, he admitted that, because of this turn of events, he was side‑tracked and forgot his obligation pursuant to the section.

14. The mere fact that the Accused had exercised his right to silence cannot prevent Senior Constable Yazarloo from telling the Accused what he, Yazarloo, was required to do as a matter of law and then so doing.  That he might not obtain an answer is nothing to the point.

15. Thus, Senior Constable Yazarloo was in breach of Section 74D and evidence of his conversation with the Accused on 22 September 2001 is inadmissible unless:

    “74E.(1)(b)        the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer’s non‑compliance.”

16. In my opinion, it is in the interests of justice to allow evidence of this conversation to be admitted.  This evidence is probative of the Accused’s state of mind when he made this statement to Senior Constable Yazarloo.

17. The conversation was such that it was not possible to record it.  I accept Senior Constable Yazarloo’s evidence that he tried to dissuade the person on the telephone from speaking to him and requested that he, and his solicitor, attend Holden Hill Police Station two days later.  I accept that notwithstanding this request, the Accused made his statement to Senior Constable Yazarloo of his own volition and, upon completion of the telephone conversation, Senior Constable Yazarloo made a handwritten note of it.

18. The failure to comply with the provisions of Section 74D(2) in the subsequent record of interview was trivial.  I accept the evidence of Senior Constable Yazarloo on the topic and am satisfied that his failure to comply was unintentional.

19. Thus, in my view, not only is evidence of the conversation admissible, but also there is no need for the jury to be warned in accordance with Section 74E(2) of the Act.

20. A further Rule 9 Notice, dated 15 August 2003, sought to exclude any evidence of what might be protected by the usual rules of legal professional privilege as between the Accused and his solicitor.

21. No attempt was made to elicit evidence of any such statement.

22. In addition, this Notice also sought to exclude evidence of a conversation between the Accused’s solicitor and Constable Growden on 17 September 2001.

23. The evidence given on the voir dire by the Accused’s solicitor clearly shows that she spoke to Constable Growden, as instructed by the Accused, and that she conveyed to him her instructions.  I find this to be so.  Accordingly, any existing legal professional privilege has been waived and evidence of this conversation may be given in the trial.