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.

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.
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…

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 Pedler

Details

AGLC: R v Pedler [2017] SASCFC 108
Case: [2017] SASCFC 108
Decision Date: 31 August 2017

CaseChat Overview and Summary

The appeal concerned a conviction for indecent assault against a nine-year-old female complainant, "F", and a related conviction for an indecent act against an eight-year-old male complainant, "M". The appellant, the father of F and M, argued that the verdicts were unsafe and unsatisfactory. The central dispute revolved around the admissibility of an interview conducted by police with the appellant, which contained alleged admissions.

The court was required to determine whether the interview with the appellant complied with section 74D of the *Summary Offences Act 1953* (SA), which mandates the recording of interviews with suspects. Specifically, the court had to consider if the interview was improperly admitted into evidence and, if so, whether this constituted a substantial miscarriage of justice, thereby requiring the conviction to be quashed. The court also considered the safety and satisfaction of the verdicts in light of other evidence, including the testimony of the complainants, a defence witness, and the appellant's alleged deletion of a photograph.

The court found that the interview with the appellant did not comply with section 74D of the *Summary Offences Act 1953* (SA) because it was not recorded electronically, despite it being reasonably practicable to do so. The purpose of this legislation, as explained by reference to parliamentary debates and High Court jurisprudence, is to ensure the reliability of admissions made by suspects and to prevent disputes over the content of interviews. Given this non-compliance, the evidence of the interview was inadmissible unless the court was satisfied that the interests of justice required its admission, which the court was not. The court concluded that the admission of this unrecorded interview led to a substantial miscarriage of justice regarding the conviction for the indecent assault of F.

Consequently, the appeal against the conviction for the indecent assault of F was allowed, and the conviction was quashed, with a judgment and verdict of acquittal directed. However, the appeal against the conviction for the indecent act against M was dismissed, as the court found M's evidence to be unchallenged and free from inconsistencies that would render the verdict unsafe.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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”. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

VANSTONE J

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

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J

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 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. 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. 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.