R v Mitchell (No 3)
[2020] SASC 149
•11 August 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v MITCHELL & ORS (No 3)
[2020] SASC 149
Reasons for Ruling of the Honourable Justice Lovell
11 August 2020
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - PARTICULAR CASES
The accused, Benjamin Mitchell, is charged with two counts of murder pursuant to ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA). He is charged on a joint information with four co-accused.
Application to exclude conversation with police - whether police had reasonable grounds to suspect - adequacy of caution - whether there is unfairness to the accused
Held:
1. The application is dismissed.
R v Bueti; R v Morrissey (1997) 70 SASR 370; R v Dolan (1992) 58 SASR 501; R v Kamleh (No 2) [2003] SASC 35; R v Lee (1950) 82 CLR 133; R v Murphy (1996) 66 SASR 406; R v Nguyen (2013) 117 SASR 432; R v Sharp (1983) 33 SASR 366; R v Szach (1980) 23 SASR 504; Van der Meer v The Queen (1988) 62 ALJR 656, considered.
R v MITCHELL & ORS (No 3)
[2020] SASC 149Criminal: Application for exclusion of evidence
LOVELL J:
Overview
Benjamin Mitchell (‘Mitchell’) is charged, along with four others, with the murder of Urim Gjabri (‘the deceased’) at Para Vista, South Australia (‘the Para Vista murder’).[1] The murder allegedly occurred in the course of a ‘drug rip’.[2] Mitchell and his co-accused have pleaded not guilty to the charges and the trial is set for September 2020.
[1] Pursuant to ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA).
[2] A drug rip is a home invasion at premises where drug crops are being grown.
By a rule 49(1)[3] application filed on 7 May 2020, Mitchell seeks an order excluding the evidence of conversations between Mitchell and Detective Sergeant Paul Ward (‘Ward’) on 19 October 2018.
[3] Supreme Court Criminal Rules 2014 (SA).
Mitchell contends that the evidence is inadmissible as Ward, prior to speaking to Mitchell must have entertained a reasonable suspicion that Mitchell had committed a criminal offence, or offences. Ward was therefore required to administer a caution to Mitchell that he had the right to remain silent and that his failure to do so rendered the conversations unfair.
Legal principles
The onus lies upon the prosecution to prove, on the balance of probabilities, that the statements were made voluntarily; that is, that they were “made in the exercise of a free choice to speak or be silent”.[4] If the statements are made voluntarily and therefore admissible, a trial judge has a discretion to exclude the evidence on the grounds of unfairness.[5] The onus of establishing unfairness is on the accused. It was not suggested that the statements to Ward were involuntary. Mr Apps, counsel for Mitchell, submitted that Mitchell ought to have been advised of his right not to answer questions, the failure to do so leading to unfairness if the prosecution sought to lead his responses.
[4] R v Lee (1950) 82 CLR 133 at 149.
[5] R v Lee (1950) 82 CLR 133.
While a police investigation is at the stage where information is being gathered, or possible suspects are given the opportunity of clearing themselves, the need for a caution does not arise. Once the investigation has reached the stage that the police officer has reasonable grounds for suspecting a particular person, he or she ought not to interrogate that person without advising them of their right not to answer questions.[6] Prior to that stage being reached, however, police officers are entitled, and indeed expected, to employ all legitimate investigatory skills including putting questions to any person, whether suspected or not, from whom useful information might be obtained.[7]
[6] R v Dolan (1992) 58 SASR 501 at 505 per King CJ.
[7] R v Szach (1980) 23 SASR 504 at 582 per King CJ.
A caution may be required even though there is no belief by those conducting the interview that the person being interviewed was involved in the offence. Whether a caution should be given will depend upon the weighing of the information possessed by the police and their belief about the status of the person being interviewed.[8] The presence of reasonable grounds to suspect a person indicate that the accusatory stage has been reached, even if police have decided not to charge the suspect.[9] Although the test is expressed in objective terms, namely whether there are reasonable grounds to suspect a person, the existence of such grounds must depend to an extent on the view the particular police officer takes of the information to hand.[10]
[8] R v Kamleh (No 2) [2003] SASC 35 at 4 [10] per Gray J.
[9] R v Murphy (1996) 66 SASR 406 at 412 per Doyle CJ.
[10] R v Bueti; R v Morrissey (1997) 70 SASR 370 at 378 per Doyle CJ.
It is the unfairness of the use at trial of answers given without a caution being administered that enlivens the discretion to exclude the answers. The common law balances the need to allow the police freedom to investigate a crime in order to ascertain wrongdoing whilst also ensuring that a suspect is fairly treated and their right to silence is protected. This balance is achieved by allowing police to conduct a general inquiry into an unsolved crime until the accusatory stage is reached. Precisely when the accusatory stage is reached is difficult to define.[11] Much depends upon the facts of each case. The omission of the caution in circumstances in which it ought to be given, is not decisive of the fairness of admitting the evidence. The judge, when considering whether to exercise the discretion, must take account of all relevant circumstances including the omission to administer the caution.[12] There may be other circumstances that make it unfair to use answers obtained without the administration of a caution. While it is the potential unfairness in the use of the answers at trial that enlivens the discretion, the manner in which the police dealt with the suspect is also relevant. The requirement of fairness cannot be turned into fixed categories.[13]
[11] Van der Meer v The Queen (1988) 62 ALJR 656 at 661 per Mason CJ.
[12] R v Dolan (1992) 58 SASR 501 at 505 per King CJ.
[13] R v Bueti; R v Morrissey (1997) 70 SASR 370 at 378 per Doyle CJ.
Where a suspect is under arrest or otherwise in custody, the administration of a caution is virtually an indispensable condition of the admissibility of the answers.[14]
[14] R v Dolan (1992) 58 SASR 501 at 505 per King CJ.
Evidence on the voir dire
Ward (the investigating officer from Major Crime in South Australia) gave evidence on the voir dire. Three police officers from Queensland then gave evidence. Ward was recalled and gave further evidence after the three police officers from Queensland had completed their evidence.
The interaction between all of the police officers and Mitchell was generally recorded with audio equipment and some with audio visual equipment. To that extent much of the evidence was unchallenged. The major issue on the voir dire was whether, on the facts known by Ward and the circumstances in which he questioned Mitchell, Ward should have cautioned Mitchell.
Background evidence
Ward is a Detective in the Major Crime squad. He was part of the team investigating the murder of the deceased. The murder occurred at around the 12.00 am on 9 October 2018. Ward, through his investigations, became aware that Aaron Carver (‘Carver’) may have been involved in the murder and that he had left South Australia and had travelled to Queensland. The police obtained a warrant for the arrest of Carver in Queensland.
Ward travelled to Brisbane on 18 October 2018 to apprehend Carver for the murder. At that time, the police had DNA evidence, obtained from a discarded cigarette butt, connecting Carver to the crime scene. Police were aware that Carver had travelled to Queensland in a Subaru WRX and that Mitchell was the owner of the Subaru. Police were aware that Carver was travelling with others. Information suggested that Carver, and the others, were staying at a hotel in Ipswich and on 19 October 2018, Ward travelled to Ipswich with Queensland police. At that time, Ward was not aware who had travelled with Carver. Ward acknowledged there was a possibility that the person Carver had travelled with may have had knowledge of, or may have been involved in, the Para Vista murder.
The Queensland police had applied to a Magistrate for search warrants to enable a search of the two hotel rooms in which Carver and his group were staying. The application was granted. To execute the South Australian arrest warrant, the Queensland police conducted a raid of two rooms at the hotel; Carver was arrested. Others who were present, including Mitchell, were removed from the hotel rooms by Queensland police. Ward was present but did not participate in the raid. Following Carver’s arrest, he spoke to Mitchell and asked him what he was doing in Queensland. Mitchell said that he had driven Carver to Queensland to visit friends.
It was at this stage that the Queensland police began to search the room occupied by Mitchell. At this stage, Detective Wheeler (‘Wheeler’) spoke to Mitchell.
The matters set out above were not disputed.
Evidence of Detective Wheeler
Wheeler is attached to the Homicide Investigation Unit of the Queensland police. He was the officer who obtained the search warrants from a Magistrate in Queensland relating to the hotel rooms where Carver and others were staying. Wheeler stated that along with a specialist unit of the Queensland police he executed the arrest warrant and Carver was taken into custody. Having spoken to Carver, Wheeler then executed the search warrants relating to the two hotel rooms.
Wheeler gave evidence that he cautioned Mitchell at the hotel; such a caution is required to be given when a search warrant is executed. It is a requirement to allow an occupier of an area to be present when it is searched and in such circumstances various rights, including a caution, are given.[15] Wheeler stated that such a caution is administered irrespective of whether there is suspicion over the person or persons present. An audio recording of Wheeler’s conversation with Mitchell was tendered.[16] Wheeler explained to Mitchell that:
1.he had the right to remain silent and not answer any questions or make any statements unless he wished to do so but if he did say anything or make a statement it could be later used in evidence;
2.he could telephone a friend or relative and could have them present during questioning;
3.he could speak to a lawyer who could be present at any questioning; and
4.reasonable time would be allowed for a lawyer to be present.
[15] Pursuant to the Police Powers and Responsibility Regulations.
[16] Ex VDP14.
Mitchell indicated that he understood his rights. Importantly, Wheeler explained to Mitchell that the police were there in relation to an investigation into a homicide and explained to him that they were searching for, amongst other things, mobile phones, bank statements, cannabis and weapons such as axes and tomahawks. Mitchell was provided with documentation which included a copy of the search warrants. Wheeler told Mitchell that he was not being questioned in relation to anything at that time but if the police needed help with anything, they would come and ask him questions. Wheeler, in company with other officers, commenced to search the two rooms. He left his audio recording device running while searching and from time to time he asked Mitchell questions. It is important to observe that Mitchell, despite the caution, freely answered the questions posed by Wheeler and other police officers.
When cross-examined, Wheeler accepted that he did not tell Mitchell that he was not under arrest. He accepted that Mitchell possibly thought he was being detained. There was no challenge to the evidence of Wheeler and I accept his evidence.
The search was conducted by the Queensland police and Ward did not participate in the search. It was while the search was being conducted that he spoke to Mitchell.
Evidence of Detective Sergeant Ward
Ward stated that he spoke to Mitchell to obtain his reason for being in Queensland and whether Carver had spoken to him about the murder during the trip. At that time, the police had no information that Mitchell was involved in the murder.
Ward commenced taking what was described as a witness statement from Mitchell. Ward asked questions of Mitchell and recorded Mitchell’s responses, typing them on his computer in statement form. The uncompleted statement, unsigned, was tendered.[17] Ward did not see the need to caution Mitchell when he commenced the written statement. Ward was aware that Mitchell had been cautioned prior to him commencing to take the statement. Ward stated that Mitchell was well-spoken and responsive to questions, despite the fact he had just been brought out of a hotel room by police officers with drawn guns.
[17] Ex VDP1.
Unbeknown to Ward, the audio recording device operated by Wheeler during the search also recorded him taking the statement from Mitchell. Ward discovered this had occurred after he had completed his evidence on the voir dire. Ward was recalled and gave further evidence. Although Mitchell had not challenged the statement taking, the audio recording corroborated, completely, Ward’s evidence of how he had conducted that interview with Mitchell.
The tendered statement, unsigned, of Mitchell speaks for itself. However, the audio recording reveals an answer given by Mitchell not recorded by Ward. Ward, being aware that Mitchell had been cautioned (and given other rights), asked Mitchell what he understood by the rights he had been given. Mitchell explained his understanding and Ward has recorded his answer. What is then recorded in the statement is as follows:
I understand that and I am now giving this statement.
That is a reasonable summary of what was said but the recording establishes the actual interchange that occurred:
(Referring to his rights explained by Wheeler)
WARDYou understood all what was said to you and you’re now giving me this statement.
MITCHELL (A slight pause)
MITCHELL You seem nice enough to talk to.
WARD No worries
In context, I am satisfied that Mitchell understood that he was not required to answer Ward’s questions but elected, freely, to do so.
The police search of the room continued while Mitchell was speaking to Ward but it appears that Wheeler’s audio recording device was moved as it is very difficult, if not impossible, to hear what Ward and Mitchell then discussed.
During the questioning, Ward turned to Mitchell’s involvement in driving Carver to Queensland. Mitchell stated that he had received a call from Carver who asked Mitchell to go and see him. Mitchell attended at a house in Murray Bridge that he had never been to before. Ward asked Mitchell to think carefully about the conversation he had with Carver and anything Carver had said. The statement then reflects:[18]
… Detective WARD has now asked me why I have paused and has asked me if [sic] was involved in the home invasion at PARA VISTA with Aaron.
[18] Ex VDP1.
Ward gave evidence that, at this point, Mitchell’s demeanour changed and he (Mitchell) paused before responding. Ward said it was this change in demeanour that initially raised his concerns that Mitchell was not being truthful. He then activated the audio recording device on his computer. This recording was eventually tendered, as was a transcript of the discussion.[19]. Having activated the device Ward stopped typing the statement and questioned Mitchell.
[19] Ex VDP2A; Ex VDP2.
Ward told Mitchell that his concerns were raised as a result of the pausing but emphasised that he still was not sure whether Mitchell was involved or not. This is evident from the initial part of the interview:
WARDNow I’ve, I’ve been taking a statement off you and we’re up to page 3 of that statement now I’ve just asked you if you were, I’ve just asked you about a conversation that you had with Aaron, now you were about to go into that conversation, but you’ve paused and that, that has raised some concerns for me about whether you were there at the time of the home invasion so I’ve asked you, you haven’t answered the question yet, I’ve asked you we’re [sic] you involved in the home invasion that, where a man has died
MITCHELL Yeah I understand, I think I understand the question,
WARD Okay
But I don’t if if if I can just simplify it for you, and bearing in mind just your reaction at the moment, I’m not sure whether you’re involved or not right at this very minute
MITCHELL Yep
WARDbut I must say that I’m just, with your reaction I’m just a little bit worried maybe that you might be starting to fall from a witness to maybe a person who was involved in this home invasion at Para Vista where the man died
MITCHELL Yea nah I I was not no.
WARD Were you with Aaron?
MITCHELL I I was there to pick Aaron up at his house
WARDRight, did did you go to Para Vista on the night of the home invasion where the man died?
MITCHELL I’ve been to
WARDNo Ben, just if I can stop you there mate, I’m asking you were you with Aaron at the home invasion in Para Vista on the 8th or 9th of October where a man was killed?
MITCHELL Ehm
WARD Just come closer to the table for me mate cos I’ve got this, I’ve put this recording on
MITCHELL Yep I yea I wasn’t, I wasn’t
WARD You you were not there is that correct?
MITCHELL Yea I wasn’t there
WARDOkay so you were not present at the home invasion at Para Vista on the 9th?
MITCHELL No
WARD No, were you anywhere near the house on the 9th?
MITCHELL No
WARD Can can I ask and I’m still not sure where you fit now
MITCHELL Yep
WARDAt this very moment I’ll, I’ll be open with you I’ve got no forensic evidence at this very moment that suggest that you were there
MITCHELL Yea
WARDHowever there is material from that scene that is being processed in Adelaide as we speak
MITCHELL Yep
WARDAnd that process is DNA Fingerprints and things like that from from items that were found at the scene
MITCHELL Yep
WARDOkay, the reason I’ve put this audio on is I’m like I say, just your reaction I’m not entirely sure whether you weren’t there and I’m not entirely sure that you were there
MITCHELLYep, I understand, yea I, no I wasn’t, yea I don’t, I don’t know any other way to put it I at this stage, I think that like
WARD You you seem a little bit unsure about that
MITCHELL Yea, yea I just think a lot and I
Ward continued to question Mitchell and asked him whether he went to the Para Vista house:
WARD Again I’m, I’m really confused about where you fit right now. Where, did you go to a house at Para Vista?
MITCHELL No
WARD Okay can I ask then why the change of your demeanour
MITCHELLI’m like I heard about this and like and I looked it all up, but I didn’t, like but I didn’t believe Aaron like like and his family were in involved I just thought I was taking them.
WARDYep, mate if if if we put that aside for a minute, we’re just talking about you at the moment
MITCHELL Yep
WARD Okay we’re just talking about you
MITCHELL Yea
WARD so the question again is, did you, did you go there on that night?
MITCHELL No
WARD Is there anything you want to tell me? Ben.
…
WARDWere you at the house or in the vicinity of that house at 17 Carousel street when that bloke was killed?
MITCHELL No I don’t know Carousel Street
WARD Just come forward for me mate so I can hear you
MITCHELL Yep I don’t know Carousel Street, sorry my mouth is a bit dry
WARD That’s that’s okay. Carousel Street is at Para Vista
MITCHELL I don’t know, yea Para Vista I looked it up
WARD Yea, Yep, were you with Aaron when the person was killed?
MITCHELL No
WARDNo? Were you with Aaron when drugs were stolen? Cannabis was stolen?
MITCHELL No
Mr Apps, counsel for Mitchell, asked Ward about his reasons for activating the recording. Ward stated:
AYeah, the statement - when the statement commenced Mr Mitchell was - appeared to me comfortable; well spoken and responded to my questioning. When we get to this bottom part of the page where we are starting to talk about the trip to Queensland and what Carver had spoken about, I just detected that Mr Mitchell had changed. And that did raise concerns for me.
…
QIf he paused, just because you thought that, why would you suddenly have to put the audio on do you think.
ABecause I was - because there had been a change in his demeanour I naturally assumed that there was a reason for that. I wasn't sure what that reason was and, in fairness to Mr Mitchell, I figured the best practice at that point was to record everything that we spoke about, in the event that at some point down the track Mr Mitchell became a suspect or a person of interest in this matter.
QSimply because you had asked him about what Aaron had said in the phone call or in a conversation when you went to see him.
AI can't explain why his demeanour changed. It just did. I'm not sure what was going on inside Mr Mitchell's head but it was certainly enough for me to become concerned and then activate that audio to get a true accurate recording of what we spoke about.
QSurely it's because you suspected him because of the surrounding circumstances before you even started talking to him, and his demeanour confirmed your suspicion in your eyes.
AAs I said to him on audio, I had no evidence whatsoever at that point to suggest that he was involved but his change in demeanour had given me concerns. I believe we were a long way from a suspect.
QIt's one thing for you to have the actual evidence, it's another thing for someone to be a suspect, isn't it.
AIt is but I felt we were well short of anything like a suspect. In fact he wasn't arrested until a month later.
QGoing back to VDP2, because you say you are just feeling your way at that stage about this conversation. Why did the simple fact that he paused raise concerns for you whether he had been there at the time of the home invasion. What on earth had happened prior to that to cause you to think that.
AHis behaviour had changed.
QA pause.
AA long pause. I think, Mr Apps, the audio of the recording may help put in perspective what I mean by pauses. He had changed.
QSo you thought you had him on the run.
ANot on the run but I was concerned that something was going on and I wasn't sure what that was. I was very transparent in my interview about that. I explained to Mr Mitchell that 'I do not know where you fit'.
Ward remained adamant that he had not formed a reasonable suspicion about Mitchell at this point.
It is important to note that Mitchell made no admissions about being involved in the murder. In fact, he denied that he had attended the Para Vista premises. While no admissions were made, the police later obtained evidence that, in effect, placed Mitchell at the scene of the murder. His denials are relevant at trial and will be led by the prosecution at trial as false denials made from a consciousness of guilt.
I have listened to the audio recording (Exhibit VDP2A) with the assistance of the transcript (Exhibit VDP2). There were significant pauses before Mitchell answered questions. I accept Ward’s evidence about that. When questioned, Ward admitted that, in hindsight, the number of times he asked Mitchell whether he was involved may have been excessive, but Ward maintained that he had not come to the conclusion in his own mind that Mitchell was involved. Ward maintained that he felt Mitchell was hiding knowledge of something, but he was not sure what he was hiding.
Ward stated, and the recording supports, that the pausing got longer and consequently he made a decision to activate the video recording (Exhibit VDP3A) and caution Mitchell. Ward gave evidence that even at this point he did not think Mitchell was a suspect:
… If he was a suspect and if I can move forward to when I activated the video, I gave him a caution out of an abundance of caution. Even at that point I still did not think he was a suspect. If that was the case I certainly would have had a warrant raised in this State and I would have arrested Mr Mitchell at that time.
After the caution was given by Ward, Mitchell declined to answer any further questions.
Ward was an impressive witness and I have no hesitation in accepting his evidence. Ward was not aware that his initial statement taking was recorded on Wheeler’s audio recording device. His evidence in chief was later confirmed, on this aspect, to be correct. In any event, he gave clear and cogent evidence and, in my opinion, his evidence about the demeanour of Mitchell is substantiated by the later recordings. Ward made appropriate concessions under cross-examination. I find his evidence to be credible, truthful and reliable. He was an excellent witness.
Evidence of Officer Weston
When the Queensland police extracted Carver, Mitchell and the others from the two units at the hotel, Mitchell was remanded in Weston’s custody until the situation was contained. However, Weston confirmed that Mitchell was not arrested by him at that time. Weston described Mitchell as compliant and calm.
There was no challenge to his evidence and I accept it.
Evidence of Detective Sergeant Nixon
Detective Nixon (‘Nixon’) was present at the hotel for the duration of the search. He did not recall anyone telling Mitchell he was free to go but also did not believe that he was detained at any time either.
Nixon said that Mitchell attended the Ipswich Police Station after the search of his own volition. He also stated that he recalled that Detective West (‘West’) arrested Mitchell for the purpose of further questioning in relation to the murder, pursuant to s 365(2) of the Police Powers and Responsibilities Act 2000 (QLD). Under this section, police could hold Mitchell for eight hours and had a four-hour time limit in which to question Mitchell. Mitchell declined to be interviewed and about an hour later, he was unarrested and released.
Nixon gave evidence that he thought that the arrest of Mitchell at the police station would have been at the request of Ward.[20] However, in evidence, Ward denied requesting West to arrest Mitchell and was surprised it had been done given Mitchell had already indicated he did not want to answer any questions. Ward stated that there was no reason to arrest Mitchell and he would have considered it improper for him to ask a Queensland officer to do so.[21] I accept Ward’s evidence about this incident.
[20] T266.
[21] T271-272.
Discussion
Mr Apps submitted that the caution given by the Queensland police needed to be viewed in the context in which it was given. The caution was given when the Queensland police commenced searching the rooms. They told Mitchell they were not asking him any questions and gave him his rights and cautions. Mr Apps contended that Mitchell compartmentalised the caution to questions from the Queensland police regarding the search. He submitted that I could infer that Mitchell considered the caution in that way as a matter of common sense.
I do not accept that submission. I do accept that Mitchell was in custody at the time or at least de facto custody. It is unsurprising that in such a situation the Queensland Regulations require a caution, and other rights to be given. As discussed, in South Australia, if an accused is in custody or de facto custody, a caution is almost inevitably required. In this case it was done. Clearly Mitchell understood his rights including the right to remain silent; he acknowledged this to Wheeler and Ward had him repeat his understanding.
There is no evidence that Mitchell compartmentalised the warning to a right to remain silent on questions about the search. It is for Mitchell to establish the facts upon which he wishes the Court to exercise its discretionary power to exclude the interviews. As already discussed, and I find, Mitchell was aware he did not have to answer any questions from Ward but chose to do so. Mitchell also freely answered questions posed by the Queensland police officers who were searching his room. That is, there is evidence from which I can draw the inference that he in fact did not compartmentalise the caution as submitted by Mr Apps. Mitchell chose not to give evidence on an issue on which he bears the onus of proof. There is no basis for me to draw the inference suggested by Mr Apps as the evidence points to the contrary position. Although it does not arise on the facts of the case, where the evidence is equivocal but an accused declines to give evidence, a court may decline to draw an inference favourable to an accused.[22]
[22] R v Sharp (1983) 33 SASR 366 at 372 per Cox J.
The finding that Mitchell was given a caution, that he understood it but decided, despite the caution, to respond to Ward’s questions, is sufficient to dispose of this application. There is simply no unfairness established. However, as the issue as to whether Ward had reasonable cause to suspect Mitchell was argued before me, I will decide that point as well.
Mr Apps also submitted that Ward had a reasonable suspicion that Mitchell was involved when he commenced taking the statement or at least by the time he noticed a change in Mitchell’s demeanour. Mr Apps submitted that Ward had sufficient information, before travelling to Queensland, that Mitchell was involved in the Para Vista murder. Police believed there were between three to five suspects involved and believed Carver and Rigney to be two of those suspects. By the time he interviewed Mitchell, Ward knew that Carver had travelled in Mitchell’s car all the way to Queensland and the car was of interest to Ward as he believed it could have blood splatter in it. Counsel submitted that for something as simple as a pause to create a concern within Ward that Mitchell might be involved, he must have already suspected him.
I reject the submission that Ward had a reasonable suspicion from the outset of the conversation with him. As previously stated, I found Ward to be an honest and reliable witness and I accept his evidence. Ward clearly stated that he had no evidence that linked Mitchell to the Para Vista murder. In my view, the information Ward had prior to speaking to Mitchell was not enough for him to form a suspicion that Mitchell was involved in the murder. The information related primarily to Carver and the purpose of police operation in Queensland was to arrest Carver. Ward stated his reason for interviewing Mitchell was that he identified him as a potential witness as Carver may have spoken about the Para Vista murder on the drive from South Australia to Queensland. In my view, this is a rational connection to make. Further, Ward’s initial line of questioning is consistent with his evidence, namely that he wished to discover why Mitchell drove Carver to Queensland. I accept that Ward did not have a reasonable suspicion that Mitchell was involved in the murder prior to talking with him.
Mr Apps submitted that once the audio was activated, Ward’s comments and questions illustrate the fact that he had a suspicion and that he was “honing in” on it at that point. Further, he contended that the continued questioning as to Mitchell’s involvement, to which denials were consistently made, showed an attempt to get Mitchell to make admissions. Counsel submitted that Ward believed Mitchell was involved but the seminal question was whether he could prove his involvement.
I reject the submission that Ward had reasonable cause to suspect Mitchell of being involved when he commenced the audio recording. The existence of reasonable grounds to suspect depends, to some extent, on the view taken by the relevant police officers of the information provided to them.[23] I find Ward articulated quite clearly his state of mind both in the interview with Mitchell and in court before me. In activating the audio recording, Ward stated that he was concerned by Mitchell’s reaction to a question about Carver. There was a change in demeanour and in my view Ward was entitled to ask questions about what had caused the change. There could have been many explanations for the change. Ward indicated that, due to Mitchell’s reaction, he was worried Mitchell was starting to fall from a witness to maybe a person involved. Mitchell denied involvement. Nothing was said by Mitchell to increase Ward’s suspicion about his involvement in the offence. I accept, as Ward conceded, that Ward thought he may not be answering the questions truthfully. However, that does not mean that he was involved in the murder. It is important to note that Mitchell denied any involvement or even being at the Para Vista address. Mitchell’s denials could not have added to the suspicion of Ward other than what he already thought, namely, that Mitchell may not be telling him the truth. Objectively, irrespective of Ward’s state of mind, I find that Ward simply did not have enough information to move from the investigative state to an accusatory one. As Ward himself stated, even after he gave Mitchell a caution, he did not consider Mitchell to be a suspect; he simply was being careful.
[23] R v Bueti; R v Morrisey (1997) 70 SASR 370 at 378 per Doyle CJ.
Mr Apps submitted that when considering if a caution should have been administered, I should consider the circumstances in which Mitchell found himself.[24] Mitchell had been brought out of his room at gunpoint and arguably felt incredibly pressured. Whilst I accept he would have been terrified at the time the guns were pointed at him, I cannot accept that Mitchell was terrified during his interview. The interview with Ward occurred sometime after Mitchell had been removed from the room at gunpoint. I have had the benefit of the audio recordings. There is nothing to support the suggestion that at the time Mitchell spoke to Ward he was “terrified”. Mitchell did not give evidence to support such a finding.
[24] R v Bueti; R v Morrisey (1997) 70 SASR 370.
Ward accepted, when cross-examined, that he did perhaps persist in asking Mitchell too many times whether he was involved. In my view, no unfairness arose in Ward’s questioning. The simple point is that Mitchell continued to deny any involvement.
I accept Ward’s evidence that he did not reasonably suspect Mitchell. A suspicion must be founded on supporting material from which a rational connection can be drawn. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.[25] As Ward said, he was uncertain of where Mitchell “fitted in” the scenario, and was trying to ascertain why Mitchell’s demeanour changed. He had no evidence to connect Mitchell to the Para Vista murder. Ward simply had no information on which to draw a connection that Mitchell was involved.
[25] R v Nguyen (2013) 117 SASR 432 at 437 [21].
In my view, Ward complied with his obligations under s 79A of the Summary Offences Act 1953 (SA). Being careful, he cautioned Mitchell at the beginning of the video recording despite still not having reasonable grounds to suspect him of being involved.
I refuse to exclude the evidence of the conversations between Ward and Mitchell.
Order
1.The application is dismissed.
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