R v Pedler

[2017] SASCFC 108

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PEDLER

[2017] SASCFC 108

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Doyle)

31 August 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

Appeal against convictions for two counts of aggravated indecent assault. Appellant found guilty after a single trial by Judge sitting without a jury. The complainants were brother and sister but the evidence of each was not admissible in relation to the charge concerning the other. Grounds include that the Judge wrongly admitted evidence of an interview of the appellant conducted by the police upon his arrest, that the Judge erred in declining to exclude parts of the recorded statement of the female complainant, and that the verdicts were unsafe and unsatisfactory.

Held (Vanstone J, Kelly and Doyle JJ agreeing):  Appeal against conviction in relation to the female complainant allowed. Verdict of acquittal substituted. The Judge erred in admitting evidence of the appellant’s police interview in circumstances where the recorded interview was not available for tender. 

Appeal in relation to the male complainant dismissed. It was not suggested that the appellant made any admission in relation to him.  Verdict not unsafe.

Summary Offences Act 1953 (SA) s 74D, s 74E, s 74F; Criminal Law Consolidation Act 1935 (SA) s 353; Evidence Act 1929 (SA) s 34CA, referred to.
The Queen v McDonald (1979) 21 SASR 198; M v The Queen (1994) 181 CLR 487, considered.

R v PEDLER
[2017] SASCFC 108

Court of Criminal Appeal:   Vanstone, Kelly and Doyle JJ

VANSTONE J.

1. After a three day trial in the District Court in which a Judge sat without a jury, the appellant was convicted for two counts of aggravated indecent assault.  The charges were laid on separate Informations.  The young complainants were brother and sister, but it was common ground that the evidence of each was not admissible in relation to the case against the other.  Nonetheless, it was agreed by both counsel that the two trials could proceed together, as a good deal of other evidence was relevant to both charges. 

2. Upon the appeal it is argued that the Judge wrongly admitted evidence of an interview of the appellant conducted by police on the occasion of his arrest.  That raises a matter of law.  It is further argued that the Judge erred in declining to exclude parts of the recorded interview with the female complainant and that he may have misused those parts.  There are several other grounds which were referred to this Court on the question of permission which complain of certain findings made by the Judge.  I propose to treat those as particulars of the seventh ground, that the verdicts are unsafe and unsatisfactory. 

3. For the reasons which follow I consider that evidence of the interview between police and the appellant did not comply with s 74D of the Summary Offences Act 1953 (SA) and should not have been admitted. The interview was said to contain limited but important admissions in respect of the female complainant. Accordingly, the appeal against that conviction is to be allowed unless this Court “considers that no substantial miscarriage of justice has actually occurred”: s 353 of the Criminal Law Consolidation Act 1935 (SA). I cannot reach that view and therefore would quash the conviction for indecent assault of that complainant.

   Background

4. The female complainant, “F” was aged nine years during the time when the alleged incident occurred. Her brother “M” was eight years of age. The evidence of each was admitted by statements in the form of recorded interviews pursuant to s 34CA of the Evidence Act 1929 (SA) and was supplemented by some oral evidence. The appellant is the brother of F and M’s father. During the relevant period they were living with their father. The allegation on which the charge concerning F was based was that at a time when the appellant was staying overnight at the home of his brother and F and M, the appellant either carried her or encouraged her to go from her bedroom to the living room where he was to sleep. There she fell asleep. She alleged that later she awakened to find that the appellant had turned her so that she was face up. He then pulled down her pyjama bottoms revealing her knickers, and took a photograph of her “underwear”. This incident was said to have occurred against a background of other uncharged occasions when he had touched her in the area of her waist and abdomen, near to her vagina.

5. The allegation giving rise to the charge in relation to M was that, during the same or another visit, the appellant had come into the bathroom when M was in the bath, that he had told M to stand up, and that “he grabbed my willy and holded it tight and then pulled it”. 

6. The complaint of F was apparently reported to police in about August 2013. The s 34CA statement of F was recorded on 29 August 2013. The interview of M took place on 13 November 2013. The Judge was told that the investigating officer, Senior Constable Zacher, received a report of the allegations in early January 2014. Her attempts to locate the appellant at an address at O’Halloran Hill proved unsuccessful, as he was not home. She must have eventually learned that the appellant had moved to the country because on 31 July 2014 she and other officers drove to Kapinnie, near Cummins, where the appellant was located in a paddock. He was arrested and driven to the Port Lincoln Police Station to be charged.

7. Senior Constable Zacher gave evidence that during the drive to Port Lincoln she spoke with the appellant and Senior Constable Clark operated equipment to record the conversation.  She said she also made “small notes of things that I just choose to remember along the way”, but since she believed the interview was being electronically recorded she saw no need to take a verbatim record of it. 

8. After arrival at Port Lincoln Senior Constable Zacher compiled an apprehension report.  In that report she included several aspects of her conversation with the appellant.  She said these were reproduced both from her memory and from the notes she had made.  The following is taken from the apprehension report:

   Pedler stated that there was one occasion he recalls whilst staying there that he rubbed [F’s] back and shoulders because she had asked him to.  Pedler agreed that this was not appropriate and stated that he avoids putting himself in these situations.  Pedler stated that there was no other time he touched [F].  Pedler stated that his preference is teenage girls and that he has not touched [M]. 

   Senior Constable Zacher confirmed in evidence that neither the alleged admission that Pedler had rubbed F’s back and shoulders, nor the appellant’s acknowledgement that such a touching was inappropriate were found in her “small notes”.

9. Senior Constable Zacher gave evidence that she believed the interview was recorded onto her own “SD card”.  She said that at some point she would have removed it and put it into her folder.  About a week later she took steps to transfer the data on the SD card to a disk.  She assumed that operation was successful.  In October 2014 she took the disk from police storage, planning to make a transcript of the conversation.  At this point she realised that the conversation was not on the storage disk.  Attempts to retrieve it from her SD card failed.  It seemed likely that the conversation had been on the SD card but had been recorded over and lost.

10. The Judge heard argument going to the operation of s 74D of the Summary Offences Act 1953 (SA) and the admissibility of those parts of the conversation which purported to be reproduced in the apprehension report. He determined that s 74D did not operate in the circumstances of the case and that evidence of the summary of the conversation could be admitted. It is unnecessary to give an account of the Judge’s reasoning.

11. The appellant renews the argument that no material arising from the conversation between police and the appellant should have been admitted. 

12. In the course of the investigation police seized the appellant’s mobile telephone and examined it.  No photograph was found consistent with that which F claimed had been taken of her. 

13. Certain sections of the s 34CA Evidence Act interview of F had been objected to in a pre-trial application.  Prior to any evidence being given Mr Jolly, who appeared for the appellant both at trial and before this Court, raised this matter with the Judge.  He advised that, while there was a rule 49 notice on foot seeking exclusion of parts of the interview, he did not seek a ruling before the trial proper commenced.  He said:

    … but given that we’re now a trial by judge alone, all I propose to do is to alert your Honour to the fact there is material in there and simply take your Honour to the dangers of that which are now obviated because we’re not before a jury.

    Mr Jolly then confirmed that he had invited the prosecutor to tender the interviews and that he would address the offending passages in his closing submissions.

14. When it came to his final address Mr Jolly identified a number of parts of the interview of F which he said referred to “irrelevant matters” and he asked the Judge to “simply ignore and put to one side” those passages.  The Judge sought clarification of exactly what he was being asked to put aside and that was provided.  There the matter rested. 

15. In his reasons for verdicts the Judge declined to “put aside” two assertions which were contained within the impugned passages.  One was an assertion by F that the appellant had said to her that she was “his favourite” and the other was that F sometimes put games on the appellant’s Samsung Galaxy phone.  The Judge declined to ignore those two passages, considering them to be relevant, as they plainly were.  In particular the latter assertion was contrary to evidence given by F to the effect that she had never taken or used the appellant’s telephone.  It also resonated with evidence from F’s father that, on one occasion, he had found her in bed playing with the appellant’s mobile telephone.  Both matters had the potential to assist the appellant.

16. As I understand Mr Jolly’s complaint it is, that since the other matters which he asked the Judge to ignore were not mentioned in the Judge’s reasons, we are not to know whether use was made of them. 

17. The remaining ground is that the verdicts are unsafe and unsatisfactory.  The appellant attacks the finding that he had taken a photograph of F as she claimed and a finding that the appellant had deleted it once he learned of a complaint having been made to police.  It seems that although there was no photograph of F on his telephone, police found a pornographic image for which he was charged.  The appellant also complains that inadequate weight was put on the evidence of the defence witness, Ms Kenney, who, based on observations she made of F and M, expressed the view they were “sexualised”.  He also refers to what was known of other “irregularities” in relation to the familial circumstances of the two children, including that the children were known to the Department for Family and Community Services.  Furthermore, in relation to M, Mr Jolly argues that his evidence is suspect because he only disclosed what the appellant did to him when, having returned to live at his mother’s house, she told him that if the appellant ever touched him, he was to tell her.  M was not interviewed by police until about three months after having stayed with his father. 

    Consideration

18. The obligation upon investigating officers to record conversation with suspects is of longstanding.  The division of the Summary Offences Act 1953 (SA) which included the progenitors of s 74D, s 74E and s 74F came into force early in 1996. The reasons for the introduction were, in essence, to ensure that objective evidence of admissions or incriminating statements by suspects could be presented to courts and to provide opportunity to suspects to view that evidence at an early stage.

19. I reproduce from Hansard an excerpt of the speech of the Honourable SJ Baker (Deputy Premier) on the occasion of the Statutes Amendment (Recordings of Interviews) Bill being read a second time in the House of Assembly: South Australia, Hansard, House of Assembly, 5 July 1995, 2711-2712.  This passage encapsulates the mischief which the amendments were designed to address. 

    Many criminal trials are characterised by contests between police witnesses, who allege a significant confession or admission by the accused, and the accused, who alleges that the confession or admission was fabricated or coerced.

    The evidence that concoction or coercion has, on occasion, occurred cannot be disputed.  Over the years, it became more and more obvious that the courts in general, and the High Court in particular, were becoming concerned about the quality and reliability of the evidence of police interviews that were coming before them.  A series of High Court cases culminated in 1991 when a bare majority held, in a case called McKinney and Judge (1991) 171 CLR 468, that a trial judge must warn a jury that it is dangerous to convict on the basis of an alleged confession or admissions made while in police custody unless there is reliable corroboration. Signing the record of interview does not suffice for that corroboration.

20. Relevant parts of the legislation in force as at the time of this interview are now reproduced.

    74D—Obligation to record interviews with suspects

    (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—

    …

    The balance of s 74D(1)(c) deals with the situation where it is not reasonably practicable to record the conversation on videotape. Here, plainly, it was practicable to do so and it was thought to have been done. Accordingly, the balance of subsection (1) is not reproduced. The remainder of s 74D imposes duties on the investigating officer to advise the suspect of his rights to hear and obtain copies of the recording. There is no suggestion of non-compliance with those duties in this case.

    74E—Admissibility of evidence of interview

    (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 Part; or

    (b)     the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer’s non-compliance.

    (2)If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b), the court must—

    (a)     draw the jury’s attention to the non-compliance by the investigating officer; and

    (b)     give an appropriate warning in view of the non-compliance,

    unless the court is of the opinion that the non-compliance was trivial.

21. In my view the purpose of this legislation would be subverted by allowing to stand the decision to admit this evidence. The evidence carries with it the dangers which led to the introduction of legislation of a similar ilk throughout Australia. It is not to the point that Senior Constable Zacher believed that she was complying with the Act and probably did so, insofar as having the interview recorded was concerned. It is implicit in the legislation that the obligation upon the investigating officer extends to presenting the recorded evidence of the interview to the Court. Section 74E contemplates only two situations: compliance and non-compliance with the legislation. Compliance must be taken to include presentation of a viable recording to the court. In some circumstances non-compliance may be overlooked if the “interests of justice require the admission of the evidence”: s 74E(1)(b), but it is unlikely that would be so unless the available evidence was seen to be an accurate record of the entire conversation. This case is very far from that, because the statements attributed to the appellant are not verbatim and are without context.

22. With respect to the Judge, I do not consider that there was room to find that s 74D and E did not apply at all and that the evidence was able to be admitted outside the regime provided in these sections. In my view Part 17 of the Summary Offences Act 1953 (SA) is a code covering admission into evidence of interviews with suspects.

23. Curiously, the Judge said in his reasons for decision that, in making his assessment of F’s evidence, he placed no reliance on the things the appellant allegedly told police.  This suggests to me that the Judge may have entertained misgivings about the decision he had earlier made to admit the evidence.  It does not have any impact, though, on my assessment of this ground of appeal.  I am satisfied that the Judge was in error in admitting evidence of the conversation with police.

24. I turn to the argument that the Judge erred in declining to exclude certain parts of the s 34CA interview with F and misused that evidence. As outlined earlier, the Judge declined to exclude two of the six sections of the interview to which objection was taken. He plainly saw those as being potentially helpful to the appellant. The first was F’s assertion that the appellant had told her she was his favourite. This did not sit well with F’s account of her behaviour with the appellant, which was to pretend to be asleep when he touched her. In his reasons at [380] to [381] his Honour discussed the evidence and explained why that matter had not caused him “any disquiet” in concluding that F was a reliable witness.

25. The other aspect of F’s interview which the Judge declined to ignore was F’s statement that sometimes F played on the appellant’s telephone and sometimes put games on it.  In evidence F denied that her father had caught her playing with the appellant’s mobile telephone.  F’s father had given evidence that he had found her using that telephone under her bed clothes one night.  Since the charge alleged that the appellant used his mobile telephone to take a photo of F all this material was plainly relevant.  The other four matters objected to do not rate a mention in the Judge’s lengthy reasons.  I see no reason to speculate that they might have played a role in his Honour’s decision making. 

26. What this ground of appeal suggests to me is that there may be an unfortunate tendency in counsel, when appearing before a Judge without a jury, to abandon the level of formality concerning evidence which is adhered to in jury trials.  I consider that is dangerous.  Rulings on evidence should be sought and approached in the same way irrespective of whether or not a jury is the fact finder.  Had the Judge been asked to rule on these arguments in the usual way there would have been no doubt about the fate of the other four matters.

1. Because the Judge made an error of law in admitting evidence of things said by the appellant to police when interviewed, the conviction for the offence relating to F must be quashed unless the Court considers that no substantial miscarriage of justice actually occurred: s 353 of the Criminal Law Consolidation Act.  Having regard to the evidence of F’s father that he found her with the appellant’s phone under her bed clothes, coupled with the evidence that she told police in her interview that she used the appellant’s telephone, added to her denial in evidence that she used the telephone, I cannot say that no substantial miscarriage of justice has occurred.  Then, there is the curious statement of F to police to the effect that she was the appellant’s favourite.  I cannot but wonder whether F has been entirely truthful as to the extent of the events which befell her.  In all these circumstances I consider it is appropriate not to order a re-trial of the charge, but to enter a verdict of acquittal.

2. The situation with M stands differently.  The appellant’s police interview contained only a denial in respect of M.  Therefore the attack against that conviction rests on the way the complaint was elicited, the asserted rejection of Ms Kenney’s evidence and the suggested dysfunction of the family. 

3. I do not think it is accurate to say that the Judge dismissed Ms Kenney’s evidence as unreliable.  He certainly found she was unreliable as to dates.  But the question remains what use could he make of her opinion that F and M were sexualised, even if he accepted it.  Even if the children were sexualised that does not obviously call into question their honesty or reliability.  Any such finding could be seen to point either towards or away from a conclusion that the children were truthful.  I agree with the Judge that he was not in a position to use that evidence.  The way in which M’s complaint came to light needed to be considered.  However there was nothing unlikely or suspect about that sequence of events.  Indeed, having regard to F’s complaint it was not unreasonable for M’s mother to give that advice to M.  That she had any particular agenda is mere speculation.  She was not called to give evidence.  The Judge found M to be a persuasive witness.  He said at [421]:

   I was very impressed with the matter-of-fact way in which [M] described what the accused did to him both to the police officer and at the accused’s trial.

   The Judge said he found M’s evidence “convincing and compelling”: [423]. My own reading of the boy’s interview and his evidence leads me to a similar conclusion.

4. I have considered whether the irregularity of the two trials being heard together has any impact in this context.  I have also considered to what extent the long delay between trial and verdicts – a delay of some 15 months – should be brought to account when considering the safety of this verdict.  Both eventualities are most unfortunate.  Great care is usually taken to ensure that inadmissible material does not come before a tribunal of fact.  The usual rules should be adhered to whether or not the tribunal is a jury or a judicial officer.  There may be good reason to proceed differently.  The Queen v McDonald (1979) 21 SASR 198 provides an example. There, all charges were linked only by a single confession. There was no other identifying evidence. Even so, the process followed in that case would not necessarily apply now, at least without argument. But there was no such justification in the present case. Had it not been for defence counsel’s acquiescence, an appeal must have succeeded.

5. In many cases a long delay between trial and verdict will call into question that verdict.  This case has some ameliorating aspects.  First, the evidence of the children was presented mainly by electronic recording.  The Judge had opportunity to review it at his leisure.  Then, the Judge gave lengthy and detailed reasons which demonstrate a sure understanding of the facts and the arguments.  The trial only lasted three days.  That makes the delay more surprising, but it also implies the issues were uncomplicated.  Finally, and importantly, in relation to the safety of the verdict relating to M, M’s evidence was unchallenged by other evidence.  And unlike F’s, it was not attended by any proven inconsistency or difficulty such as to give rise to misgivings.  Having subjected M’s evidence to the independent scrutiny demanded by M v The Queen (1994) 181 CLR 487 I am satisfied that the conviction in relation to M should stand.

   Conclusion

6. In relation to the count concerning the female complainant I would allow the appeal and quash the conviction.  I would direct a judgment and verdict of acquittal. 

7. In respect of the appeal against the conviction on the count concerning the male complainant (count 2 on the Information dated 3 February 2015) I would dismiss the appeal.

8. KELLY J:             I agree with the orders proposed by Vanstone J for the reasons she has given.

9. DOYLE J:             I also agree with the orders proposed by Vanstone J for the reasons she has given.