R v Nicholson

[2005] SADC 171

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v NICHOLSON

Reasons for Ruling of His Honour Judge Tilmouth

22 December 2005

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES

Accused, affected by alcohol, asked a question by police and makes spontaneous admissions - questions and answers not recorded or confirmed pursuant to s74D of the Summary Offences Act.

Held: Pre-requisite suspicion and proposal to interview was not present to activate the operation of s74D. Question not otherwise improper or unfair even though police failed to later confirm.

Summmary Offences Act  74D, 74E, referred to.
Nicholls & Coates v The Queen (2005) 219 CLR 196; Kelly v The Queen (2004) 218 CLR 216; R v Karger (2002) 83 SASR 135; R v Smith (1992) 58 SASR 491; Coleman v Zanker (1991) 58 SASR 7, considered.

R v NICHOLSON
[2005] SADC 171

The Charge

1. Frank Nicholson stands charged with arson.[1]  Brief particulars are that on 11 August 2003 at Blair Athol he set fire to a home and contents owned by the Aboriginal Housing Authority, a home in which he had resided since August 2002 with his de facto partner, Georgina Young.

   [1] Contrary to s85(1) of the Criminal Law Consolidation Act 1935

2. There is evidence that the fire was deliberately lit, based on severe charring to the centre lounge room floor.  The house ultimately was damaged to such an extent that it is estimated to cost $42,000 to repair.   

   Background

3. The circumstances are that there was some domestic trouble between the accused and Ms Young in the past and particularly on the day before.  At about 10.30 am on the morning of Monday 11 August 2003 there was an argument between them, following which Ms Young left the premises and called the police with the assistance of neighbours.  Police arrived at the home situated at 17 Audrey Avenue Blair Athol, and assisted her to remove personal belongings, whereupon Mr Nicholson, who was in an agitated and angry state based on the statements of the two police officers then present, threatened on at least two occasions to burn the house down.  They also instructed him, at her request, to vacate the premises by 6 pm that evening.

4. She later called Mr Nicholson when he again, it is alleged, threatened to burn down the house if she did not return home.  He apparently remained there throughout the day, where according to a neighbour “he played loud terrible music for the rest of the day”. 

5. Fire appliances from several stations were first called to the scene at 6:45pm.  On arrival flames coming from the rear of the premises were seen and the house was described as being “well alight”.  Indeed flames were coming though the lounge windows above the height of the gutters and through an open front door.  Although the accused was at the scene of the fire, Ms Young was not.

   Conduct of the Accused

6. Mr Nicholson was observed by fire personnel to be standing on a porch near that front door and regarded him as being in some danger in that position as “flames were all around him”.  He was approached and directed to leave the verandah but refused, telling fire-officer Collins “don’t worry about it, I’ve got it under control, it’s nothing”. When asked if there was anyone else in the house he retorted “maybe, whatever, what if there is?”  Collins described the accused as completely “uncooperative”.  He refused to supply his name and gave every appearance of someone who was “not worried about his property”.

7. Soon afterwards Mr Nicholson forced his way into the front room as the ceiling collapsed and fell to the floor.  He then left and re-entered through a rear door, putting himself yet again in danger, whilst at the same time hampering the efforts of the fire crews, even to the point of threatening them.  At this Collins requested urgent police assistance and as they pulled up Nicholson was heard to say “I’m in the shit now”. Collins responded “not necessarily, have you done anything wrong,” to which Mr Nicholson replied “yeah, doesn’t matter”. 

   Police Intervention

8. By this time it was about 7:10pm.  Mr Nicholson was observed by two women police on their arrival to be exhibiting obvious signs of intoxication and there was black staining around his face and hands. Tape was placed across the front of the property to secure the scene for investigation into the cause of the fire. Three fire officers entered the house followed by Nicholson, against their express directions that he not do so and after having been told by a woman police officer that it was “unsafe”. 

9. Senior Constable Pedler who was then stationed with Holden Hill Patrols was called to the scene, shortly after 7.10 pm that night. According to him, Mr Nicholson was yelling and being abusive.  At one stage Pedler had to forcibly remove him from the house. A little later a struggle ensued with Pedler, the accused was taken to the ground, handcuffed behind his back and removed from the property to a grassed area adjacent to a footpath on the other side of the roadway well out of harms way, where Pedler advised him of his arrest for hindering police and resisting arrest.  By then it was around 7:30pm. 

10. At this time he was, at least according to the evidence of Senior Constable Pedler, “given his rights” respecting those offences.  A police cage car arrived some twenty minutes or so later, for his conveyance to the Holden Hill Police Station.  The balance of the evidence is to the effect that he was formally charged at Holden Hill on the summary offences at 8:19pm.[2]  There he was further charged with arson at 11:20pm that evening whilst still in custody over the former offences.[3]  In the meantime the officers concerned had spoken to Georgina Young about the events earlier that day, had been advised of an admission said to have been made to Senior Constable Anthony Smith (detailed later in these reasons) and had also spoken to the technical services crew investigating the potential causes of the fire.[4]

    [2] See Exhibit VD P1 

    [3] Evidence of  Senior Constable Anthony J. Smith p 17 LL 36-38.

    [4] Evidence of  Senior Constable Anthony J. Smith p 16 L22, L 38, p 23 L28-24 L15 

11. Before being taken to Holden Hill Nicholson remained on the garden or grass verge area. He appeared to have calmed down somewhat and so far as can be judged from broken video footage tendered in the defence case and shown during the voir dire,[5] he remained there quietly seated for the bulk of the time he was in that area.   Once the conveyance arrived he became quite agitated again, was swearing and shouting and as far as one can tell, was somewhat concerned to attract the attention of the media at one point.  It was impossible to detect from the footage much of what he was saying at this time and according to the statement of woman Police Officer Achurch, he was “hard to understand due to his intoxicated state” anyway.  The footage shows him to be quite unpredictable and practically ranting by this last stage of the proceedings. 

    [5] Exhibit VD D1

12. On the whole the two media videos show the accused – whatever his state of intoxication  -  at first to be relatively steady on his feet and calm to outward appearances, then he became agitated and aggressive on the two or so occasions he attempted to enter the house and on his removal from there, but after he was handcuffed he seemed to have sat or remained passively until his emotions were stirred up when the police commenced to put him into the cage car. At various times he seemed capable enough of maintaining conversations and was quite able to converse fairly lucidly and responsively when he chose to.

    The Rule 9 Notice

13. There is a Rule 9 Notice objecting to certain evidence by way of admissions said to have been made by the accused in the period immediately following his arrest and well before being placed in the cage car.  This was filed less than fourteen days prior to the trial due to no fault of counsel.  As the points raised by Mr Allen are of some substance, there are circumstances justifying the waiver of compliance with the time required for lodgement.[6] 

    [6] Pursuant to Rules 9.03 and 9.06 District Court Rules 1992 respectively.

14. The evidence of the impugned admission comes through Senior Constable Anthony Smith.  Smith was on unrelated plain-clothes patrol in the vicinity and attended merely because he recognised from conversation overheard by him on the police radio concerning a suspicious fire, the address and the occupants (being the accused and Ms Young), with whom he had dealings over at least twelve months beforehand.[7]  Smith had had “no problems with [Nicholson] before”.[8]  The evidence was relatively non specific as to the extent of that knowledge; it went only so far as to show that Smith’s previous dealings with Mr Nicholson was probably in relation to “driving a vehicle” and speaking with him “about him committing offences in the past”.[9]  Smith attended only because he thought that he might be able to “perhaps help him out a little bit” and calm Nicholson down and to see if they needed any further assistance.[10]         

    [7] Evidence of  Senior Constable Anthony J. Smith p 39 L7

    [8] Evidence of  Senior Constable Anthony. J. Smith p 29 L19

    [9] Evidence of Senior Constable Anthony J Smith p35 LL1-8.

    [10] Evidence of Senior Constable Anthony J Smith p 29 LL7-9, p 37 LL 6-7 

15. By the time Smith arrived at 7:30 pm or thereabouts,[11] the accused was handcuffed to the rear and in the area of the footpath opposite the house as mentioned.  As it happens, since Nicholson was “already handcuffed…there wasn’t much else [Smith] could do for him there”.[12]  Smith remained at the scene for probably a little over two minutes, certainly only a few minutes at most.[13]

    [11] Evidence of Senior Constable Anthony J Smith p 43 L 29

    [12] Evidence of Senior Constable Anthony J. Smith p 36 L16-18 

    [13] Evidence of Senior Constable Anthony.J Smith p 38 LL 35-36, p 39  L15

    The Impuned Admissions

16. In the event Senior Constable Anthony Smith approached Nicholson with words “How are you Frank?” or “Where is Georgina” to which the accused replied “I told her if she did not come back, I’d burn it down” or “I told her if she did not come back I’d burn the house down”.[14]    I am satisfied that when giving evidence Smith at first confused this occasion with another interchange he had an hour or so later with the accused at the Holden Hill police station, and that he approached Nicholson by saying ‘Where is Georgina”, not that the difference amounts to anything of significance.

    [14] Evidence of Senior Constable Anthony J Smith p 29 LL 18- 24, p 42 L-31  p 43 L9

17. This utterance by the accused is clearly capable of amounting to an admission and on one view it would be open to a jury to regard it as a complete confession by him to the crime charged.  Thus it is cogent evidence upon which a jury would be entitled to convict him,[15] although it is far from the only evidence against him. 

    [15] McKay v The King (1935) 54 CLR 1

18. Smith thought, as did other police officers, the accused to be somewhere between moderately and grossly intoxicated[16] and as he had some dealings with Mr Nicholson in the past, this would seem to be the better assessment.  It would not appear to matter very much because all officers regarded him at least as moderately affected.[17]  The alcohol clearly fuelled his state of mind and his behaviour at various times that evening. 

    [16] Evidence of Senior Constable Anthony J. Smith p 39 LL 30-40 LL 9, p 44 LL 5-15

    [17] Evidence of Senior Constable Anthony J. Smith p 18 L35-19 L14

19. Smith did not make a contemporaneous note of this potentially telling exchange with the accused, although it was recorded in a statement of witness made by him some five days later on 16 August 2003.   He also passed it on to Detective Senior Constable Jason Smith before departing the scene, who in fact made a note of it at the completion of his shift at about 2am the following morning.[18]  The incriminating conversation was also said to be overheard by Senior Constable Rohan Crawford whose version was that Nicholson said “I told her if she wouldn’t come back I would burn it down”.[19]  He recorded the conversation in a notebook, possibly two weeks later.[20] 

    [18] Transcript pp 16 L 32-17 L17,  p 34  L28-29.

    [19] Evidence p 43 L8-9.

    [20] Evidence p 43 L14-321.

20. Somewhat surprisingly, none of these officers took steps at any time, proximate or otherwise, to put this admission to the accused later or to have it confirmed, corrected or denied by him.[21] Smith had with him on location in his police vehicle a hand-held tape recorder, available for use in recording conversations with suspects.[22]  Those police officers concerned called on the voir dire, were not cross-examined in a way suggesting these conversations did not occur.

    [21] Evidence of Senior Constable Anthony. J. Smith p 26 LL 1-16, evidence of Senior Constable Anthony. J Smith p 38 LL 25-28   

    [22] Transcript p 31 L15-24.

    The first basis of exclusion – failure to record conversation

21. The points made by defence counsel were that this conversation ought to be excluded on the basis that it was not recorded, or that later it was not confirmed by the accused, in breach of s74D of the Summary Offences Act 1953 (SA). In abridged terms that section requires an investigating officer who “suspects or has reasonable grounds to suspect a person of having committed an indictable offence and who proposes to interview the suspect must ensure”, with certain exceptions not presently relevant, that the interview is recorded. Senior Constable Anthony Smith was, it is accepted by both Counsel, the “investigating officer” in this matter for the purposes of s74D.

22. Smith himself and other officers, have all given evidence that when Nicholson made the admission, they did not suspect him of any offence. I accept their evidence on that point simply because Smith himself,only remained at the scene for a few short minutes, made no enquiries as to the circumstances, and whose concern was of a passing nature, such that there was insufficient time, and insufficient information or basis upon which to have formed any suspicion, capable of attracting the operation of s74D. Any suspicion he might have entertained, would have been too preliminary, too inconclusive, and based on too little material. On no objective view of the circumstances could it be said that there must have been reasonable grounds at that point in time to suspect Mr Nicholson of an indictable offence relating to the fire.[23]

    [23] R v Haydon (No 4) (2005) 238 LSJS 149, [2005] SASC 18 at [42-46].

23. In any case the exchange between Smith and the accused was not in form or in substance a “conversation” in any guise.  Although that expression “conversation” has a wide meaning incorporating “conversations” or any part thereof under s74C[24] this situation was rather prefatory: Smith had to say something to commence his intention to assist.  By choosing the words “Where is Georgina” or “How are you Frank” for that matter, he was hardly embarking upon a conversation likely to produce the unexpected admission spontaneously volunteered by Mr Nicholson.

    [24] R v Karger (2002) 83 SASR 135 at [115-116].

24. In those circumstances, whatever the suspicions of the police may or may not have been, there was no proposal to interview the accused within the meaning of s74D (1). Therefore there has been no breach of the provision on that account either.

    The second basis of exclusion – the failure to confirm

25. In, at first sight an attractive argument, Mr Allan mounted a further submission that even if the pre-requisites to s74D(1) were not satisfied, there was in any case an independant statutory obligation arising under s74D(1)(c)(i) and (ii), to record the conversation “as soon as practicable” afterwards. There was no difficulty with the practicalities of the situation because Smith had with him as noted above, an audio recorder in the police vehicle nearby. The attractiveness of this construction of the relevant provisions of the Summary Offences Act arises from the desire by the legislature, and by the Courts in interpreting these and akin provisions,[25] to ensure their operation is not side stepped by the device of creating gaps, cracks or windows in “conversations” during which the operation of the obligation to record is avoided.

    [25] See for example s86 Uniform Evidence Acts, and refer Second Reading Speech Hansard House of Assembly 5/7/95, pp2711-2713.

26. In general terms that construction may be seen from such decisions as Nicholls & Coates v The Queen[26] in which it was held that a toilet break between conversations should have been recorded, and Pollard v The  Queen[27] where the statutory obligation to record was found to have arisen earlier then supposed by the police in that case.

    [26] (2004) 219 CLR 196

    [27] (1992) 176 CLR 177.

27. Of necessity, any conversation must have a beginning and an end point; the latter is illustrated by the decision of Kelly v The Queen[28] where it was held that a conversation which had taken place within an hour after an interview was concluded, one not made in response to any questions asked by the investigating police, fell outside the operation of an analogous Tasmanian provision.[29] 

    [28] (2004) 218 CLR 216.

    [29] Refer also to Heatherington v The Queen (1994) 179 CLR 370.

28. However, on close consideration there are a number of evident flaws in the argument of defence counsel.  The first is that the obligation to subsequently record is one dependent upon the pre-requisite suspicion arising in the first place and the pre-requisite proposal to interview in the second.  Neither have been satisfied for the reasons given above.  Secondly, to read the statute in the way contended, is to place an unjustified gloss on the provision.  Thirdly, on proper analysis, no relevant “conversation” had ever commenced.  If the section is to be read in the way contended for by defence counsel, the police would have to record practically everything that was said to them under most circumstances, including purely operational activities undertaken as a prelude to an investigation; that would create obligations too onerous and impracticable to implement or to enforce.

29. Having said that, the police would be well advised where important incriminating admissions are made in circumstances not amounting to “conversations” within the meaning of s74D of the Summary Offences Act, to subsequently have them confirmed by audio or video recording, for the reasons that it provides an opportunity of affirmation, correction or denial as a matter of fairness to an accused person; it places on the record at an early subsequent time the fact that such an admission is alleged to have been made; it avoids allegations of recent invention (which is not suggested here); and it avoids unnecessary hearings of the kind occurring in this case.[30]  Furthermore, where the admission is denied by an accused person, an early recording and confirmation would avoid in many cases the kind of problems that give rise to the necessity for a warning of the type recommended by the High Court in McKinney and Judge v The Queen.[31]

    [30] Driscoll v The Queen (1977) 137 CLR 517, 539-540, Coleman v Zanker (1991) 58 SASR 7, 16.

    [31] (1991) 171 CLR 468 at 476. Also refer to R v Derbas (1993) 66 ACrimR 327, 344 and Black v The Queen (1993) 179 CLR 44 at 54-55.

    The discretion to admit   

30. On the breach of s74D, the evidence of any “interview” is inadmissible against the accused by virtue of s74E, unless the court is satisfied “in the interest of justice” the admission of the evidence is required, despite non-compliance.[32] Even then the court is required to direct the jury’s attention to the non-compliance and give an appropriate warning in view of the non-compliance under the provisions of s74E(2). Accordingly a breach of s74D ordinarily calls for exclusion.[33] Thus there is a prima facie rule of exclusion, otherwise the discretion to admit is unhedged by any other fetter. In that event, the considerations, amongst others, identified in the joint judgment of Stephen and Aickin JJ in Bunning v Cross[34]  and the cases which have followed, come into play.[35]

    [32] R vDay (2002) 82 SASR 85

    [33] Foster (above at 555), Van Der Meer v The Queen (1988) 62 SASR 656, 682, R v Byster (2001) 80 SASR 373, R v Day (2002) 82 SASR 85.

    [34] (1978) 141 CLR 54 at 78-80; refer also to Swaffield Pavic v The Queen (1998) 192 CLR 159, 194.

    [35]These are summarised in Question of Law Reserved (No 1 of 1988) (1998) 70 SASR 281 at 287-288, see also R v Lobban (2000) 77 SASR 24.

1. Even if there was a technical breach of s74D it would clearly be in the interests of justice to admit the conversation in the proven circumstances of this matter.[36] These events unfolded quite quickly, arose spontaneously and the admission sprang from a situation of the accused’s own making, and who had proved wilful enough earlier that evening when he wanted to be. Senior Constable Smith’s role was not one of investigation that night.  An investigation had barely begun. Attention was focussed on containing the fire and ensuing the safety of people, at the scene or who may still have been in the house, including the accused. The police on hand at the time of the accused’s arrest had hardly reached an investigation stage, let alone to the point that he was a definite suspect.[37]   Smith asked a seemingly innocuous or neutral question with a view to offering assistance, rather than in the course of an investigation or being one designed or likely to produce an admission.

   [36] See R v Karger (2002) 83 SASR 135 at [109] & [118]

   [37] Compare Alexander v The Queen (1981) 145 CLR 39.

2. The police at this stage genuinely gave no thought to any formal questioning, let alone recording the events: time would not have permitted them to do so. Given that the statement attributable to the accused was spontaneous and volunteered, and that the accused was distinctly selective in his conversations that evening at various times, it is also likely to be reliable. Further it connects with statements unquestionably made by him earlier that morning.  In no sense was the utterance, the product of unguarded answers by the accused.[38]

   [38] See Lenthall v Curran [1919] SALR 248

3. For this purpose it is unnecessary to make any conclusive finding about whether or not Senior Constable Pedler gave the accused his “rights” before Smith spoke to him.  The most likely course of events seems to be that he did so on two occasions, one then and one later on.  The issue is largely irrelevant because he was arrested at that time on relatively minor summary charges, and there is no reason to suppose given his behaviour, that Mr Nicholson would have declined to make statements.  The whole chain of events  -  as confirmed by the video  -  demonstrated that he was more than capable of speaking up when he wanted to.  In the result there is no identifiable unfairness to Mr Nicholson, calling for the exercise of the discretion to exclude, on that ground.[39]

   [39] R v Lee (1950) 82 CLR 133, 154, McDermott v The King (1948) 76 CLR 501, 506-507, 511, 513, Pollard (above at 234-235), Foster v The Queen (1993) 67 ALJR 550, 554.

4. It is also true that the accused was appreciably affected by alcohol on this occasion, a circumstance that may lend itself to exclusion.[40] However, he certainly had his wits about him, enough to persist in entering the premises at least twice, to make a thorough nuisance of himself and to respond to questions or proffer his own comments, selectivity, when it suited him.  Accordingly his degree of intoxication as it affects the weight of what he said to Smith is a matter for the jury to consider: Burns v The Queen.[41] 

   [40]McDermott (above at 511), R v Smith (1992) 58 SASR 49.

   [41] (1975) 132 CLR 258 at 261.

5. Clearly the jury would have to be directed, given his state of mind and state of intoxication, to consider carefully whether the accused made the statement or confession, how much reliance should be placed on it or given effect to even if made, and to be completely satisfied that it was both truthful and accurate: Basto v The Queen.[42]  In that respect as presently advised – and in keeping with s74E(2) - it would be in order to further point out to the jury that he was never afforded the opportunity to confirm, correct or deny what he is alleged to have said, when giving consideration to the weight it deserves and also that it was given by a man appreciably affected by alcohol.  In particular, if the jury thought what Mr Nicholson said to the police was alcohol induced ranting of no substance, they would have to be directed to give the evidence little or no weight.

   [42] (1954) 91 CLR 628 at 641.

   Order

6. For these reasons there will be an order waiving compliance for the filing of the Rule 9 Notice pursuant to Rule 9.06 of the District Court Rules, otherwise the disputed evidence will be admitted.