R v Porter No. Sccrm-01-331

R v PORTER
[2002] SASC 347
Criminal

MULLIGHAN J The accused was charged with murder of Hartley Conrad Crafter. It was alleged that on the night of 30^th May 2001 he abducted Mr Crafter from his home at Mount Gambier, took him to his home at Tarpeena, forced him to sign a document indicating that the accused had paid a debt due to him and then took him out into the nearly countryside at Tarpeena and murdered him by shooting him twice in the head. He then left his body in a nearby pine forest.
On the morning of 1^st June 2001 police officers spoke to the accused at the offices of the Department for Correctional Services at Mount Gambier and later in the morning a formal interview of him was conducted at the Mount Gambier Police Station.
The accused denied the charge and the matter proceeded to trial. After the jury was empanelled, but before the trial then commenced, the accused applied to have most of what he said to the police excluded in the exercise of discretion on the ground that the questioning was conducted unfairly. I heard evidence on the voir dire and submissions. I ruled that there was no ground to exclude the main part of what the accused said to the police and that part was admitted. I said I would give reasons for my decision after the trial and I now do so.
Part of the circumstances of the abduction were observed by neighbours of Mr Crafter. They did not know the identity of those involved and consequently were not able to tell the police who was responsible or that it was Mr Crafter who had been abducted. Indeed it was not established until the next day that Mr Crafter was missing.
After the murder, the accused and his nephew, Nathan Edge, went to Victoria to see his mother, who is a sister of the accused. Nathan Edge had been staying with the accused at Tarpeena. He is a young man aged 20 years.
The police commenced an extensive investigation into the disappearance of Mr Crafter. They were not aware of his having been murdered. His body was not found until 9^th June 2001. However, they suspected that the accused may have been involved in his disappearance and they suspected that Mr Crafter had been murdered.
When the accused was in Victoria, the police kept watch on his house at Tarpeena. On the prosecution case, the accused had required Nathan Edge to take the accused’s motor vehicle from his house at the time of the abduction and drive it to the accused’s house at Tarpeena where it was placed in a garage.
The accused and Nathan Edge returned from Victoria in the early hours of the morning of 1^st June. Upon approaching his house at Tarpeena, the accused saw police in the vicinity of his house. He did not stop and proceeded towards Mount Gambier. He had been released from prison on parole and had an appointment with a parole officer at Mount Gambier later in the morning.
The police became aware of that appointment and police officers kept the offices of the Department for Correctional Services under observation. When the accused arrived, he was engaged by a uniform police officer until Detective Davis, who was investigating the disappearance of Mr Crafter, and Detective Warr attended. Detective Warr was not involved in the investigation. He was stationed at Naracoorte and was at the Mount Gambier Police Station for other purposes. As he was available at the time, Detective Davis asked him to accompany him to see the accused.
When the accused arrived at the offices of the Department for Correctional Services, he and Nathan Edge were shown into a small interview room and seen by a parole officer, Ms Beavor. Sergeant Leane, who was accompanied by Sergeant Saltram, entered the room and spoke to the accused. The following conversation occurred:
“Leane Peter Porter?
Accused Yes that’s me.
LeaneWe are concerned for the welfare of Hartley Crafter. I believe that you may be able to help us with our enquiries. Would you mind accompanying us to the Mount Gambier Police Station to help us with those enquiries?
AccusedI’d like to get this interview out of the way first.
LeaneI’m sure that another time can be organised for this interview.
BeavorPeter the Police enquiries come first. I can arrange another time for this interview. Is that OK?
AccusedAlright.”
Nathan Edge then left the room with another police officer.
Sergeant Leane then had the following conversation with the accused:
“Leane‘Peter I must tell you that you are not under arrest at this stage. Do you understand that?’
Accused‘Yes but what’s going on?’
Leane‘Do you understand that you are not under arrest.’
Accused‘Yes.’
Leane‘Other Police Officers will be here soon and they will talk to you. OK?’
Accused‘Yeah but if he’s in trouble I want to help him. What’s happened?’
Leane‘Wait until the other Police Officers come and they will have a talk with you.’
The accused waited in the presence of Sergeant Leane until Detective Davis and Detective Warr arrived at about 10.40 am. They saw the accused in the interview room and Detective Davis had a conversation with him which was recorded on an audio tape.
Detective Davis told the accused at the outset of the conversation that the police had concerns for the welfare of Mr Crafter. He told him that Mr Crafter was missing and the police did not know his whereabouts. The accused told him that Mr Crafter had been to his house at Tarpeena on the previous Wednesday evening and asked if he could leave his motor vehicle there because he was going on a church trip that night. Detective Davis told the accused of his information that there had been a disturbance outside Mr Crafter’s house on that Wednesday night at about 11.35 pm. The accused said that Mr Crafter would have been away on the trip at that time. The following then occurred:
“QPeter can I just ..... because I ...... I don’t know what’s happened to Hartley at the moment but I think that he might have met with some foul play so I think it’s ...........
AYou’re joking.
Q........ probably only fair that I should warn you that uh .... the questions I’m asking you. You don’t have to answer anything. Do you understand that?
AYeah, yeah.”
The accused then told the same story about Mr Crafter going on a church trip on the previous Wednesday night and his leaving his motor vehicle at the accused’s house. He was then requested to accompany the police officers to the Mount Gambier Police Station. The accused said he would like to get the matter cleared up at that time at the offices of the Department for Correctional Services.
There was further conversation which I need not relate. I found that the accused did accompany the police officers to the police station voluntarily. He was not under arrest. The conversation concluded at 10.58 am.
At the Mount Gambier Police Station, the accused was taken to a video recording room and was interviewed by Detective Davis in the presence of Detective Rodda who was also involved in the investigation. Ms Beavor was also present. The interview commenced at 11.15 am and concluded at 1.07 pm.
At the outset, Detective Davis informed the accused of the purpose of the interview, namely to ascertain the whereabouts of Mr Crafter. He told him that he had concerns about Mr Crafter’s welfare. The accused responded by saying that he also had concerns. In answer to specific questions, the accused said that he had gone to the police station voluntarily and that he was not under arrest. He was then cautioned.
The accused was then questioned about his relationship with Mr Crafter, his story as to when he had last seen him, the church trip, his movements on the previous Wednesday and the suspected abduction of Mr Crafter. About a third of the way through the interview, the accused was told by Detective Davis that he believed that Mr Crafter had been abducted. He was asked if he had any reason to harm him which he denied. He said that generally he got on well with Mr Crafter.
Before this interview commenced, the police, including Detective Davis, had been informed by various friends and acquaintances of Mr Crafter that the accused had threatened to harm him. Some had said that the accused had threatened to kill Mr Crafter and bury him in the forest. These allegations were put to him, which he denied.
Other allegations were put to the accused based upon information which had been given to the police by neighbours of the accused. A little over half way through the interview, Detective Davis told the accused that he had some doubts about what the accused was telling him. It was not suggested that this part of the interview reflecting the state of mind of Detective Davis should be put before the jury, but I had regard to it as it not only showed that Detective Davis was not accepting explanations given by the accused but that he told him so. He also told him that acting under a general search warrant issued to him, he had entered the accused’s house late in the afternoon of the previous day.
He went on to tell the accused that upon the information he had received, he had reason to think that the accused was involved in the disturbance in the street near Mr Crafter’s house. This suggestion was denied by the accused.
Detective Davis told him that upon searching his house, Mr Crafter’s motor vehicle had been found in the garage and blood was found on that vehicle. He told him that a friend of Mr Crafter had identified a slipper found at the scene of the abduction as belonging to Mr Crafter. The questioning continued about various matters, including the allegations that he had threatened to kill Mr Crafter, which he denied.
Later in the interview, Detective Davis reminded the accused that he did not have to answer questions and that he was telling him what the situation was and of the circumstances. Whilst he did not specifically say so, he was referring to the state of the investigation and the knowledge of the police at that time regarding the disappearance of Mr Crafter.
The police were aware of evidence of bad feelings on the part of the accused to Mr Crafter following the purchase by the accused of a motor vehicle owned by Mr Crafter by instalments. These allegations were put to him by Detective Davis. The accused denied that he bore ill will to Mr Crafter for that reason but he acknowledged that he had experienced difficulties with the vehicle.
There was a break in the interview for about 40 minutes due mainly to malfunction of the video recorder during which time coffee was given to the accused. When the interview resumed, Detective Davis again cautioned the accused who said that he did not intend to answer any further questions. The questioning continued for a brief period but that part of the interview was not admitted in the exercise of my discretion. I mention that some earlier parts of the record of interview were not admitted because they were irrelevant and therefore inadmissible. Other brief passages were excluded in the exercise of discretion.
Detective Davis then arrested the accused on suspicion of having committed a serious assault on Mr Crafter and also on suspicion of unlawfully detaining him against his will. He was then informed of various rights, including the right to have a solicitor present.
Objection was taken to the admission into evidence of the remaining parts of the interview.
The ground upon which the accused applied to have the interviews excluded in the exercise of discretion is that it would be unfair to him to admit that evidence. It was submitted on behalf of the accused that the police regarded him as the prime suspect responsible for the disappearance of Mr Crafter, that they intended to arrest him and charge him with the murder of Mr Crafter and that in any event the accused would be required to accompany the police to the Mount Gambier Police Station.
At or near the end of the interview, the following occurred:
“Detective Rodda
Q510Look we won’t go any further at this stage, until you’ve sort some legal advice and he can explain to you, your legal position.
AWell if this, if I had of known this here was going to be coming through and I was supposed to be arrested for something I know nothing of, I would of like to have a solicitor in here as well with Fiona in here in the first place.
A511Right.
AInstead of this dragging me along, right I give you guys all the bloody honesty I can, straight down the bloody line and now I’m getting accused of this, this is bullshit.”
It was submitted that if Detective Davis had told the accused he was a suspect in the disappearance and possible murder of Mr Crafter, he would not have submitted to the interviews and would not have voluntarily gone to the police station. It is for that reason that the interview was unfair and should not be admitted.
The accused, Nathan Edge and Detective Davis gave evidence on the voir dire. The accused acknowledged that he did go to the police station voluntarily and that there is no issue as to the voluntariness of the statements made by him.
Reliance was placed upon R v Fieldhouse (1977) 17 SASR 92 and R v Hart, Bullock, Peterson and Hill (1977) 17 SASR 100. In the former case the accused was charged with the murder of his brother. He shot him in the head at close range. He was in a highly emotional state and the trial Judge found that he probably did not know that he had killed his brother, although he knew he had wounded him. He left his house where the shooting occurred and was stopped by police on a road some hours later. He was taken to a police station where a formal interview was conducted. The police officer conducting the interview knew that the brother was dead and that the investigation was with regard to a murder. The accused made a long statement and was then told that his brother was dead and he would be charged with murder. The evidence of what the accused said in that interview was excluded in the exercise of discretion. One of the reasons was the failure of the interrogating officer to inform the accused of the fact of the death. He had not been given a caution in the context of the specific offence of murder.
In Hart four accused were charged with the pack rape of a girl. One of them, Hill, was a young woman. She was questioned by police about her complicity in the rape. The trial Judge found that she failed to appreciate the possibility that she might be charged with rape, not only because of her lack of intelligence, but because the charge of rape, in those days, was rarely laid against a female. She was arrested for assaulting the girl and at the end of the interview she was charged with rape. It was held that the failure to warn her that she was being charged with rape, in the circumstances, rendered the questioning unfair.
The circumstances of both of those cases are significantly different from the circumstances of the present case. In Fieldhouse and Hart the accused was not informed of the offence which was being investigated. In the present case the whereabouts of Mr Crafter was not known. There were grounds to suspect that he had been abducted.
It is to be remembered that by the time Sergeant Leane, and later Detective Davis, first spoke to the accused the body of Mr Crafter had not been found. The police did not know that he was dead. They knew that he was missing, that he could have been abducted and that his motor vehicle was at the house of the accused. It was also known that there was probably blood in the tray and cabin of that vehicle. The police enquiry was at the stage of an investigation into the disappearance and possible abduction of Mr Crafter.
In The Queen v Szach (1980) 23 SASR 504 King CJ provided guidance as to how the police should conduct themselves at various stages of an investigation: see 582-583. I need not set out those observations in these reasons. I followed and applied them. I mention only those matters which have particular bearing upon the questioning of the accused in the present case.
There can be no criticism of Sergeant Leane. At the outset, he told the accused that the police were concerned about the welfare of Mr Crafter. He told him that he was not under arrest and he invited him to wait for other police to speak to him. As has been mentioned at the commencement of his conversation with the accused, Detective Davis told him of the purpose of the questioning, namely that Mr Crafter was missing, that there had been the disturbance outside his house and that Detective Davis thought that he might have met with foul play, all of which was true. Nothing about the nature of the enquiry was withheld from him and, at that early stage, Detective Davis cautioned the accused in the usual way. In doing so, Detective Davis was being fair to the accused as I do not think it was necessary that a caution be given at that stage. As King CJ observed in R v Dolan (1992) 58 SASR 501, at 505:
“It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions. This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audiovisual tape. Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.”
The stage of having to administer a caution had not been reached by this stage.
There was an obligation not to mislead the accused. Fairness may often require that a suspect be told the nature of the crime under investigation: Fieldhouse, Hart and Szach. As has been mentioned at the outset of the interview at the Mount Gambier Police Station, the accused was informed of the purpose of the interview and that Detective Davis had concerns about the welfare of Mr Crafter. He was again cautioned. As has been seen, as the interview proceeded the accused was informed of information which the police had received. I mention another observation of King CJ in Szach at 582:
“In making their inquiries the police were entitled and, indeed, would be expected, to employ all legitimate investigatory skills. These include the skills relevant to conducting inquiries by means of putting questions in a way likely to elicit the truth. Very often a skilful inquiry will involve the non-disclosure of information known to the police. The police are not obliged to disseminate information in their possession. Frequently the prospects of the success of their inquiries would be enhanced by non-disclosure and damaged by disclosure. The truth may emerge when a suspect under questioning imparts information, already known to but not disclosed by the police, which could only be known to the suspect if he were the culprit.
Such legitimate investigatory tactics are not to be confused with falsehood or dishonest trickery. Honesty is to be demanded of the police and other law enforcement agencies at all times. Falsehood, express or implied, and dishonest trickery must always bring the condemnation of the courts however worthy the ends sought to be achieved by such methods.”
Detective Davis did not approach the matter in that way. He informed the accused of the information in the possession of the police at that stage. As the interview progressed, it became plain that Detective Davis did not accept explanations given by the accused and he suspected that he was involved in the abduction and disappearance of Mr Crafter. He again cautioned the accused.

When he did arrest and charge the accused, it was for the crimes which Detective Davis suspected had been committed against Mr Crafter, namely assault and unlawfully detaining him against his will. A little over an hour later, at 1.13 pm, Detective Davis charged the accused with assault occasioning actual bodily harm and unlawful detention.
The police continued the investigation into the disappearance and possible abduction of Mr Crafter. Further evidence implicating the accused was obtained over the ensuing days. Eventually, on 9^th June 2001, Nathan Edge gave a statement and was interviewed by Detective Davis. He told the police that Mr Crafter had been murdered by the accused and informed the police of the approximate location of his body in a pine forest at Tarpeena. He assisted the police in their search and the body was located on that day. The accused was then charged with the murder of Mr Crafter.
The accused did not make any admissions of guilt as to the disappearance, abduction or murder of Mr Crafter to Sergeant Leane or Detective Davis. However, he did make statements which, by the time of the completion of the investigation, were said by the prosecution to be lies. Three of them were of such a nature and of such significance that the prosecution alleged that they were circumstantial evidence of the guilt of the accused, having been told out of a consciousness of guilt. What the accused said in the interview was important evidence in the prosecution case.
I rejected the statement of the accused to Detective Davis that if he had known more about the police enquiries he would have wanted a solicitor present. I found that the appellant was well aware of the nature of the enquiry, the state of the knowledge of the police and the seriousness of the matter. He chose not to have a solicitor present.
I did not find any unfairness in the conduct of the interviews of the accused. Sergeant Leane behaved fairly towards the accused, as did Detective Davis. I saw no reason to exclude the main part of the interview in the exercise of discretion.

[2002] SASC 347

22 October 2002