R v Mitchell (No 3) - [2020] SASC 149

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 149
Criminal: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mitchell (No 3)

Details

AGLC: R v Mitchell (No 3) [2020] SASC 149
Case: [2020] SASC 149
Decision Date: 11 August 2020

CaseChat Overview and Summary

The case of R v Mitchell (No 3) involved the accused, Benjamin Mitchell, charged with two counts of murder. The primary legal issue before the court was whether a conversation Mitchell had with Detective Sergeant Ward should be excluded from evidence, considering the adequacy of the caution provided and whether there was unfairness to Mitchell. This decision hinged on whether Ward should have cautioned Mitchell prior to questioning him about his involvement in the crime.

The court found that Ward, despite being aware that Mitchell had already been cautioned by another officer, Wheeler, during the search of his hotel room, did not administer a further caution before taking Mitchell's statement. The court examined the circumstances under which Ward questioned Mitchell and whether Ward had reasonable grounds to suspect Mitchell's involvement in the crime. The court concluded that while Mitchell had been properly cautioned by Wheeler, Ward's failure to administer an additional caution did not render Mitchell's statements inadmissible or result in unfairness. The court found that Mitchell's decision to speak to Ward was voluntary and that he understood his rights.

The court dismissed the application to exclude Mitchell's conversation with Ward from evidence, finding no unfairness had occurred. This decision was based on the understanding that Mitchell freely chose to speak with Ward, and the existing caution administered by Wheeler was adequate.

Orders

Orders of the court

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.

Background

Background to the litigation

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; and4.reasonable time would be allowed for a lawyer to be present.[15] Pursuant to the Police Powers and Responsibility Regulations.[16] Ex VDP14.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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