R v P, Dr - [2022] SADC 63

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P, DR
Criminal Trial by Judge Alone
[2022] SADC 63
Ruling of his Honour Judge Stretton
24 March 2022
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
In the course of investigating child exploitation allegations against the accused’s partner, police located material suggesting the partner may have offended against the accused’s child. Police attended the accused’s house and spoke to her about her child, asked whether her partner had dealt improperly with her child, and asked how a naked photograph of the accused’s child came to be on her partner’s phone. Police did not warn the accused until she told police that she had supplied the photo to her partner. She was then warned. In the final analysis, police were in a solely investigatory phase until the accused disclosed that she had supplied the naked photo to her partner, and so up until that time were not obliged to warn the accused of her right not to answer questions. Upon the disclosure, police suspected that the accused may have committed an offence and were obliged to deliver the warning, which they did. Upon further questioning they formed a belief that she had committed an offence and delivered her rights as required pursuant to the Summary Offences Act. Police continued to question the accused after she indicated she wished to make a phone call and have a lawyer present.
Held: There was no unfairness until police continued to question the accused after she indicated she wished to make a phone call and have a lawyer present. At that point they should have paused the interview and afforded those rights. The appropriate exercise of the discretion in this case is to exclude the remainder of the interview.
Summary Offences Act 1953 (SA) s 79A (1), (3), referred to.
R v Dolan (1992) 58 SASR 501, applied.
Van Der Meer v R (1998) 62 ALJR 656, discussed.
R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Nguyen (2013) 117 SASR 432; Ollard v R (1992) 176 CLR 171; R v Golja [2017] SASCFC 61; Matthews v R [2020] SASCFC 1, considered.

R v P, DR
[2022] SADC 63

The accused is charged with unlawful sexual intercourse with a person under 14 by allegedly aiding, abetting, counselling, or procuring a co-accused to have sexual intercourse with her daughter, aggravated communicating to procure that child for sexual activity, and 2 counts of making a record of a child engaged in a sexual act by way of taking photographs of the child, aggravated by knowing she was under 14 at the time.
The accused has pled not guilty and elected for trial by judge alone.
All offending relates to the accused’s biological daughter, in the context of her relationship with the co-accused G.
Voir Dire
By Rule 49…

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 P, Dr

Details

AGLC: R v P, Dr [2022] SADC 63
Case: [2022] SADC 63
Decision Date: 24 March 2022

CaseChat Overview and Summary

The case involved the Crown against Dr P, heard in the relevant court. The dispute centred on whether certain evidence obtained from the accused during a police interview should be admitted, given allegations of unfairness and potential improper acquisition. The accused was initially questioned about her child and a photograph found on her partner's phone, with the police not providing warnings until she disclosed her involvement in supplying the photograph. Following this disclosure, warnings were issued, and further questioning ensued despite the accused indicating a wish to consult a lawyer.

The legal issues before the court were whether the evidence obtained was unfair to admit or improperly acquired. Specifically, the court had to determine whether there was any unfairness in the police procedure and whether the accused's rights were adequately protected under the Summary Offences Act. The court needed to assess if the police acted appropriately in not warning the accused initially and if they should have paused the interview when the accused requested to speak with a lawyer.

The court found that while there was no unfairness in the initial questioning and warnings were appropriately delayed, the police erred in continuing to question the accused after she indicated a wish to consult a lawyer. The court concluded that at this point, the police should have paused the interview and allowed the accused to exercise her rights. Given this breach of the accused's rights, the court exercised its discretion under the Evidence Act to exclude the remainder of the interview. This exclusion was deemed necessary to uphold the integrity of the legal process.

The court's final order was to exclude the remainder of the interview conducted after the accused indicated her wish to consult a lawyer. This exclusion was based on the principle of preventing the admission of evidence obtained in a manner that infringed upon the accused's rights, ensuring the fairness of the proceedings.

Orders

Orders of the court

Held: There was no unfairness until police continued to question the accused after she indicated she wished to make a phone call and have a lawyer present. At that point they should have paused the interview and afforded those rights. The appropriate exercise of the discretion in this case is to exclude the remainder of the interview.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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