R v Nayda

[1999] SADC 87

R v KENNETH EDWARD NAYDA and CHRISTINE ANN NAYDA

[1999] SADC 87

Judge Lunn
Criminal

REASONS FOR RULING ON VOIR DIRE APPLICATION OF KENNETH NAYDA

Background

1. Kenneth and Christine Nayda were jointly charged on an Information with receiving cigarettes of the value of $105,000 knowing them to have been stolen. At the commencement of the trial on this Information Kenneth Nayda (“Nayda”) applied on the voir dire to have three informal statements which he had allegedly made to investigating police officers on 4 August 1998, (which are referred to below as statements 1, 2 and 3), ruled inadmissible under Section 74E of the Summary Offences Act 1953 (“the Act”). At the conclusion of the voir dire hearing I excluded each of the three statements and indicated that I would subsequently deliver these reasons for my rulings. A number of novel and difficult questions are involved about the meaning and scope of ss74C-74E of the Act.

2. At 11.59 am on 4 August 1998 Detectives Scott and Day from the Kadina CIB and Senior Constable Wardale, a police officer stationed at Stansbury, arrived at the home owned and occupied by the two accused at Wool Bay, which is a small town near the bottom of Yorke Peninsula. Each of the police officers held a warrant under s52 of the Controlled Substances Act. They believed that cannabis was being produced at the premises, but they did not know how large a quantity. They had audio recorders in their vehicles, but no video equipment.

3. Wardale told Nayda the purpose of the visit and Nayda said he would show the police where the cannabis was. He then took the three police officers to a large shed on the southern boundary towards the rear of the premises and showed them fourteen cannabis plants being grown hydroponically and other cannabis leaf which was being dried. Each police officer there saw sufficient cannabis so that he thereupon suspected that Nayda had committed an indictable offence against s32(1) of the Controlled Substances Act. Scott immediately said to Nayda:

   “I am going to ask you some further questions in relation to the cannabis plants.  You are not obliged to answer them, but anything that you do say will be taken down and may be used in evidence.  Do you understand?”

Nayda replied, “Yes.”  The police did not tape record this conversation or that which followed it.  Scott next asked:  “Do you have any more cannabis on the premises?”  Nayda replied, “Yes, a little bit more inside.”  Scott then accompanied Nayda back into the house where he and his wife showed him some more cannabis.

1. When he had gone down to the shed in which the cannabis had been found Scott had noticed another shed on the rear boundary of the premises which was locked.  While in the house he asked Nayda whether he had the keys to that other shed.  Nayda said, “Yes.”  Scott and Nayda then walked down to this shed and Nayda unlocked it.  Scott went inside the shed to see if there was any cannabis, or evidence relating to cannabis cultivation, in it.  In the shed Scott saw 43 large brown cardboard boxes, some of which were open and had cartons of cigarettes in them, and one had written on it, “Smokeboss, Torrensville”.  He was surprised by this, but it immediately came to his mind that about a month earlier there had been an armed robbery at Torrensville where a large quantity of cigarettes had been stolen.  The accused is then alleged to have said, “You’ve got what you come for.”  Scott said to him “Pardon”.  Nayda said, “This is what you wanted.  Its what you wanted.  Its what you’ve come for.”  (These two alleged utterances by Nayda are statement 1).  Shortly afterwards Scott made written notes of these words, but he did not show these notes to Nayda or ask him to confirm their accuracy.

2. At 12.08 pm Detective Day commenced to interview Nayda in the house using a hand-held audio recorder which he had obtained from his police vehicle after he had seen the cannabis in the shed.  Wardale was present at all times when Day was tape recording conversations with Nayda.  Nayda requested to consult a solicitor.  The tape recorder was switched off at 12.12 pm.  Nayda spoke to a solicitor by telephone.  At 12.38 pm the recording was recommenced and on legal advice Nayda refused to answer any further questions.  It was recorded that Day then said to Nayda, inter alia:

   “Also, during the search of the property, we have found a substantial quantity of cigarettes.  I have received information that those cigarettes may be the subject of a very serious offence which occurred in Adelaide, and inquiries are continuing in relation to those cigarettes.  I am mindful that you are not to answer any of my questions I wish to take this opportunity to tell you that I am now arresting you for the cultivation of cannabis for a commercial purpose and for possession of cannabis for a commercial purpose.  It is also my intention to further charge you at this time with the unlawful possession of those cigarettes.  It may be that that charge becomes more serious, if that is the case, I will advise you, and if necessary, we will contact your solicitor per phone again.  Again I stress please don’t make any comment in relation to what I have just said to you.”

Nayda was arrested at 12.40 pm.  It was only in relation to the cannabis charges.  Although it was not pursued in the evidence, I infer that all Wardale knew about the cigarettes was what Day had said to Nayda in his presence as set out above.  It appears that Day was then treating any likely offence by Nayda in respect to the cigarettes as unlawful possession, which is only a summary offence, and not an indictable one.

1. After Nayda was arrested he remained in the kitchen of his house with Wardale.  The detectives proceeded to question Mrs Nayda separately and to make other inquiries.  While they were together in the kitchen Wardale and Nayda engaged in casual discussions about fishing and inconsequential matters.  None of those discussions between Wardale and Nayda were tape recorded.  In the course of those discussions Wardale alleged that Nayda said to him, “I know the reason you came around is the cigarettes.”  (This is statement 2.)  Wardale wrote this into his police note book, but without specifying the time at which it was allegedly said.  This was in contrast to most of his other notes in the book which did state such times.  I do not accept that this note was made by Wardale just after any such statement was made.  The note was never shown to Nayda and he was not asked to confirm its accuracy.

2. Shortly before 1.49 pm Day requested that Nayda come outside to a carport on the premises to view some damage which had been done in the course of the police searching the premises.  Wardale walked with Nayda out to the carport.  Wardale alleged that while going to the carport Nayda said to him, “I was too bloody slow.  Those cigarettes could have gone last night.”  (This is statement 3.)  Wardale claimed that he wrote these words down in his note book almost immediately after they were said.  As they were not in a proper chronological order in the note book, I do not accept that that is when these notes were written.  Likewise these notes were not shown to Nayda and he was not asked to confirm their accuracy.

3. At 1.49 pm Day had a further tape recorded discussion with Nayda in the carport.  Day said, inter alia:

   “Mr Nayda it is now my intention to take you to the Yorketown Police Station where you will be formally charged with producing cannabis for commercial purpose and production of cannabis for commercial purpose and receiving stolen goods, namely numerous cartons of cigarettes. ....”

It was not explored in evidence why in the earlier interview set out above Day had referred to a summary offence of unlawful possession, but in the later interview he had referred to the offence of receiving, which is an indictable offence.  In the meantime Scott had been speaking by telephone to detectives in Adelaide and obtaining more details about the robbery in which the cigarettes were taken.  There is no evidence as to why the potential charge was uplifted from unlawful possession to receiving, but whatever the explanation, I find that Wardale had no part in it and that prior to 1.49 pm he had no reason to suspect that Nayda had committed any greater offence than unlawful possession in relation to the cigarettes.

1. Later that afternoon the police took Nayda to Yorketown where he was medically examined, formally charged and released on bail.  No attempt was made to interview him on video.  There was no video recording facility at Yorketown.

The witnesses

1. I accept the evidence of Detectives Scott and Day.  I do not accept that Constable Wardale recorded statements 2 and 3 in his note book with the promptness which he claimed.  I need not determine whether those statements 2 and 3 were in fact made by Nayda.

Sections 74C-74E of the Act

1. The primary challenge to the admissibility of each of the three statements was based on the provisions of the Act. Although some other submissions were made about alternative grounds of objection, it is not necessary for me to go into them.

2. The questions to be determined involve the scope and proper interpretation of these sections of the Act. The detectives acted bona fide, but they significantly misapprehended what was required to make the statements in question admissible under s74E. Even though the sections have been in force since 3 March 1996, there is surprisingly little reported authority on their precise meaning and application.

3. The relevant parts of the Act are as follows:

   “74C  In this Division ......

   interview includes -

   (a)     a conversation; or

   (b)    part of a conversation; or

   (c)    a series of conversations;

   investigating officer means -

   (a)     a member of the police force; or ........

   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.

   (2)  If the suspicion, or a reasonable ground for suspicion, arises during the course of an interview, the investigating officer’s obligations under subsection (1) arise at that point and apply to the interview from that point.

   (3)  In deciding whether it is reasonably practicable to make a videotape or audiotape recording of an interview, the following matters must be considered:

   (a).... the availability of recording equipment within the period for which it would be lawful to detain the person being interviewed;

   (b)    mechanical failure of recording equipment;

   (c)... a refusal of the interviewee to allow the interview to be recorded on videotape or audiotape;

   (d)    any other relevant matter. ............

   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. ..............”

4. Evidence of an interview is only admissible under s74E(1) if the prosecution has satisfied the onus upon it of showing that either (1)(a) or (b) has been satisfied on the balance of probabilities for that interview. In finding under (1)(a) that the investigating officer has complied with s74D the Court must be satisfied about the following five issues:

1...... That the person who took part in any interview with the defendant was “an investigating officer”?.  “Investigating officer” is defined in s74C to include a member of the police force.  The phrase is not one of limitation, and there is no cognitive significance in “investigating” when the person in question is a member of the police force.  The particular role which is assigned to an individual police officer within a team of police officers cannot affect whether any police officer is an “investigating officer” for the purposes of s74D.  Section 74D(1) applies to any police officer who otherwise satisfies the requirements of the section.  Thus Wardale was “an investigating officer” under s74D even though the primary investigatory functions were being carried out by the detectives and he was only playing an ancillary role.

1. That the “investigating officer suspects ........ a person ......... of having committed an indictable offence.”  (It is not necessary in this case to consider the alternative of where there is no actual suspicion, but only reasonable grounds to suspect.)  Here at all material times each of the three police officers suspected Nayda of having committed an indictable offence relating to the production or cultivation of cannabis.  There was no issue that the quantity of cannabis which they saw did not make any offence an indictable one, but merely a summary one.

2. That the investigating officer “proposes to interview the suspect”.  “Interview” is defined in s74C to include a conversation.  This considerably broadens what would otherwise be the meaning of “interview” and extends it well beyond a formal interrogation.  It encompasses an investigating officer who proposes to have any conversation with the suspect.  I can find no judicial exposition of “conversation”.  The Macquarie Dictionary, 2nd revised ed, p406 defines it as an “informal interchange of thoughts by spoken word; a talk or colloquy”.  It encompasses any verbal dialogue between two people where each is seeking to communicate with the other.  It does not always extend to where one person merely makes a gratuitous unsolicited comment to another, but if the recipient of such a comment responds to it and pursues a dialogue in consequence of it, the comment then becomes part of a conversation.

   This wide interpretation of “conversation” is consistent with the apparent purpose of the legislation.  It is notorious that major difficulties have been encountered in the judicial process in resolving allegations of whether the police have “verballed” a defendant by attributing admissions to him in the course of his talking with them where there has been no other evidence of whether those admissions were made or not other than that of the police and the defendant: McKinney v R (1991) 98 ALR 577. Other legislation, similar to these sections of the Act, has been interpreted on the basis of it providing legislative safeguards against the possibility of police “verballing”: Pollard v R (1992) 176 CLR 177; Heatherington v R (1994) 179 CLR 370. It is also notorious that some instances of police “verballing” have occurred not in formal interviews, but in alleged informal discussions between police and defendants. In seeking to set up a procedure through s74D which would provide a means to establish readily whether a defendant had made an admission to police it was likely that Parliament would have intended these procedures to cover admissions made outside of formal interrogation, and within general discussions.

   The prosecutor submitted that s74D(1) required that the interview which was proposed must be related to the indictable offence which the investigating officer suspected.  I do not agree.  If that limitation was to be implied, it would mean that s74D(1) would not encompass social conversations after a particular offence was suspected in which the suspect allegedly volunteered an admission about a different offence.  This would not deal with the whole of the mischief of “verballing” as outlined above.  If Parliament had wanted such a limitation to be imposed, there is no reason why it could not have been expressly included.  I consider that the mischief of “verballing” was addressed by Parliament in enacting that once a police officer suspected the defendant of an indictable offence then an admission made by the defendant about any offence was to be recorded as specified in s74D.  The interpretation put forward by the prosecutor could lead to unworkable hair-splitting about a sufficient coincidence of the precise offence suspected and the nature of any admission.

   I do not accept that the requirements of s74D(1) are limited to where the police officer has initiated the conversations, and therefore cannot extend to a statement volunteered by the defendant where there has been no prior invitation to speak made by the police officer.  “Who propose to interview” in the preamble to (1) is not to be interpreted in this way, but as merely requiring that the police officer must intend to converse with the defendant in some way.  The definition of “interview” in s74C includes “part of a conversation”.  This implies that part of a wider conversation, which is not wholly within the preamble to s74D(1), is an interview for the purposes of s74D.  If the police officer responds to something said by the defendant in initiating a conversation between them, all of what is said between them, including the initiating statement by the defendant, constitutes the conversation.  That initiating statement is part of it, and is thus caught by the definition of “interview.  It may be different where the defendant says something in a context which does not amount to a conversation with the police officer, but that is not the case here.

1. If it was reasonably practicable, that the interview was recorded on videotape, or if that was not reasonably practicable, on audio tape.  What is “reasonably practicable” is to be decided in the light of the matters raised in s74D(3).  Parliament has not laid down that every interview which is otherwise within s74D(1) has to be recorded.  Ultimately what is “reasonably practicable” in any particular situation will depend upon its particular facts.  I need not decide the issue or explore it further.  I am prepared to assume that it was not reasonably practicable for any of statements 1, 2, or 3 to be video taped or audio taped, but without deciding it.  That interesting question can await another case.

2. If there has been no video or audio taping because they were not reasonably practicable, that the prosecution has shown on the balance of probabilities that the requirements of s74D(1)(c) have been satisfied.  Subsection (1)(c) only operates where the preamble to (1) is satisfied, but it has not been reasonably practicable to video or audio tape the interview.  It can have no operation in this matter because subsection (c)(ii) was not complied with in that the written notes of the various police officers of the statements 1, 2 and 3 were not read to Nayda on video tape.  However, I should say something more about (1)(c) because of various misapprehensions concerning it which were put forward in evidence and argument.

   The operation of (1)(c) is predicated upon it not being reasonably practicable to record the interview on video or audio tape. The fact that no video taping facilities are available to the investigating police officers does not mean that the procedure in (1)(c) is not to apply. Subject to any special considerations under s74E(1)(b), it is no answer under 74E(1)(a) for the police to say that they could not comply with s74D(1)(c) because no video taping equipment was available to them. Where there has been an interview which is caught by the preamble to s74D(1) which it has been neither reasonably practicable to video or audio tape, there will be non compliance for the purposes of s74E(1)(a) unless each of the steps in (1)(c) is properly undertaken. If that is impossible in the circumstances, the evidence of the interview is inadmissible under s74E(1) unless s74E(1)(b) can apply. While in the circumstances of this matter it may not have been reasonably practicable to have procured video taping facilities, it was not impossible. A portable video unit could have been brought to Yorketown or Nayda could have been taken to Kadina where the facilities were available. It may have been onerous for police to do this, but it is the price which has to be paid under (1)(c) to make the interview admissible.

   It was further suggested that (1)(c) could not operate after Nayda had refused to answer questions, and thus that the police had not failed to comply with s74D in not pursuing the processes in (1)(c)(ii) and onwards. I do not agree. It would mean that a defendant who was alleged to have made an unrecorded admission which he later disputed would be in a worse position to refute that allegation at trial because he had lawfully refused to answer further questions than if he had not exercised his right to silence, the procedures under (1)(c) had been pursued and he had there disputed the admission attributed to him by the police. The negation of the right of the police to ask further questions after the right to silence has been exercised is pursuant to the Court’s discretion to exclude matters where there has been unfairness to the defendant, but this can always be overridden by statute, eg s38 of the Road Traffic Act 1961: Hooper v R (1995) 64 SASR 480. In my view s74D(1)(c) authorises the police to pursue the procedures in (ii)-(vi) even if the defendant has declined to answer questions. However, it produces a complex legal situation. It may be that in fairness to the accused he should be entitled to have further legal advice on his rights under (1)(c)(iv) and (v) before that procedure occurs. However, these issues can be left to be addressed in cases where they arise.

Statement 1

1. At the time of this statement Scott suspected Nayda of the indictable cannabis offences.  It is unclear whether he suspected him of the offence of receiving in relation to the cigarettes, or only of unlawful possession, but it does not matter.

2. The first part of the statement “You got what you came for” was probably volunteered out of the blue by Nayda. (Scott’s deposition stated that he looked at the accused before the accused said it, but that was not repeated in his oral evidence. If so, it may be that this first part of the statement was a response to that look, and therefore a conversation initiated by Scott.) Scott’s response of “Pardon” presumably meant that he did not fully understand it and it was a request to repeat it. It was an invitation to Nayda to engage in dialogue and thus constituted an “interview” for s74D(1) in which the initiating statement of Nayda became part of the conversation. Even if the first part of the statement was not such a conversation, and thus was not inadmissible under s74E(1)(a), I would still have excluded it as being unfair because Scott’s response of “pardon” indicated that he had possibly not fully understood it.

3. On the assumption, on which I make no findings, that it was not reasonably practicable to have video or audio recorded statement 1, s74D(1)(c) has not been satisfied in respect of it. Thus Scott had not satisfied s74E(1)(a) in relation to it.

Statements 2 and 3

1. At the time each of these statements was allegedly made Wardale suspected Nayda of the indictable cannabis offences. He did not suspect him of an indictable offence in relation to the cigarettes, but that does not matter. Both of these statements were conversations, or parts of conversations, between Wardale and Nayda for the purposes of s74D(1). It is immaterial that nothing which Wardale may have said precipitated each of the statements by Nayda as Wardale was generally engaged in conversation with Nayda. Again assuming, but not finding, that it was not reasonably practicable to have either video or audio recorded these statements, s74D(1)(c) has not been complied with in respect of them. Thus Wardale, as the investigating officer, has not been shown to have complied with that subsection as was required by s74E(1)(a).

Interests of justice

1. The prosecutor faintly argued that the interests of justice still required the admission of the evidence under s74E(1)(b) despite the investigating officers’ non compliance with s74D. Without going into the unexplored scope of that ss(1)(b) I cannot see, under any circumstances, how it could operate in favour of the police in this matter. The purpose of the sections is to provide a more reliable means of assessing the truth or falsity of allegations of police “verballing” than merely oath against oath. I am not insinuating here that police did “verbal” Nayda. He has given no evidence that he did not make these statements. However, the interests of justice are clearly best served by strict compliance with the requirements of the section and good reason must be shown to override it: R v King & Pitson (No 2) (1997) 199 LSJS 104. Neither the difficulty in obtaining the video equipment nor the exercise by Nayda of his right to silence could here allow evidence of the statements to be given “in the interests of justice”.

2. (At the subsequent trial both accused were acquitted.)