R v Racic
[2005] SADC 89
•22 July 2005
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RACIC
Criminal Trial by Judge Alone
Reasons for Rulings of His Honour Judge Barrett
22 July 2005
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION
Voir Dire - non compliance with s.74D Summary Offences Act 1953 - unrecorded conversation not referred to on video - later handwritten notes never put to accused - consideration of admission pursuant to s.74E - conversation excluded.
Summary Offence Act 1953; Firearms Act 1977; Firearms Regulations 1993, referred to.
R v Chapman (2004) 79 SASR 342; Wilson v R (1994) 176 LSJS 435; R v Karger (2002) 83 SASR 135; R v King & Pitson (No 1) (1998) 199 LSJS 111; R v Day (2002) 82 SASR 85, considered.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
Application for trial by judge alone following voir dire - consideration of power to dispense pursuant to Rule 16 with requirement to make application at first arraignment - Rule 8(5) - special reasons - application granted.
Juries Act 1927; Juries Rules 1996, referred to.
R v RACIC
[2005] SADC 89RULING ON VOIR DIRE
The accused filed a Rule 9 notice dated 21 June 2005 seeking an order that the proposed evidence relating to the search of his car and subsequent seizure of various items should be excluded on the grounds either that the evidence is inadmissible or that it should be excluded in an exercise of the judicial discretion. The firearm the subject of the charge was one of those items. Particulars of the application were that the search of the vehicle was illegal because the investigating officer did not have reasonable cause to suspect, pursuant to s 68 (1) (a) and (b) of the Summary Offences Act, that any of the criteria had been met.
He filed an additional Rule 9 application dated 24 June 2005 seeking to have excluded conversations said to have taken place between the investigating police officer Baldwin and the accused. The exclusion was sought on either the ground of inadmissibility or, in the alternative, an exercise of the discretion. The particulars of the grounds relied upon were that there had been a failure to administer a caution and that there was a breach of s 74D of the Summary Offences Act.
What became clear only at the hearing was that the objection to the conversations was not only to their admissibility at the trial but also their admissibility at the voir dire.
Evidence on voir dire
The prosecution called two witnesses who gave evidence relating to matters raised by s 68 and s 74D of the Summary Offences Act. Those matters concerned the states of mind of the investigating police at the time of the search of the bag from the car and at the time of the impugned conversations. The witnesses were Senior Constable Baldwin, a police officer of 14 years experience and Constable Cahalan, a police officer of some 5 years experience.
The police had received a general notification at about 1.30 pm on 17 April 2004 that a car had been stolen. The two officers set about trying to locate it. They found it at about 2.00pm. The accused was in the car and he got out to speak to the police. When questioned about the car he said that essentially it belonged to him and his partner, with whom he had just had an argument. The spot where the police located the car was very close to where the accused’s partner lived. Cahalan walked off to the nearby home address of the partner to investigate the claim, leaving Baldwin and the accused near the car. While she was away, Baldwin says he noticed a backpack type bag on the floor of the front passenger’s side of the car. He says this conversation took place.
Baldwin: What is in the bag on the passenger’s side floor?
The accused: Just my gear.
Baldwin: Do you mind showing me?
The accused: No.
That evidence could be said to amount to, first, an admission of ownership of the bag and its contents and, second, a consent to producing the bag to the police officer.
Baldwin says the accused then removed the bag and placed it on the boot of the car. He removed some compact disk holders from it and then said: “There is also a shotgun inside.”
The significance of this evidence is plainly that the defendant is indicating his knowledge of the firearm in the bag, an aspect of possession.
Baldwin asked him to move away from the bag. When the accused moved away, Baldwin opened the bag and found a dismantled single-barrel sawn-off shotgun. The following conversation then took place:
Baldwin: Where did you get that from?
The accused: I found it.
Baldwin:I warn you that anything you say may be recorded and used in evidence. Do you understand?
The accused: Yes.
Baldwin: Where did you find it?
The accused: Hackham West.
By the time of the caution it could be said that the accused has acknowledged that he has taken possession of the firearm and has put it in a bag which is his, along with other belongings which are also his. In summary he has confessed to two of the three elements of count 1, the charge of possession of a firearm. The third is proof of his not having a licence to possess the firearm. Further he has voluntarily handed over the firearm to the police.
After the conversations Baldwin called for the assistance of other police and at about that time the accused volunteered that he had shells in the console. This further conversation could be said to be a confession to count 2 and a voluntary disclosure of the whereabouts of ammunition.
Constable Cahalan gave evidence that she was directed by Baldwin to check the bona fides of the accused’s claim about the car. She said when she went to the address of the accused’s partner, some five houses around the corner, she received information which broadly confirmed the accused’s claims about the car. When she returned to the car Baldwin directed her to arrest the accused for the firearms offences. She did that and recorded the arrest rights on an audio tape recorder which she had in her possession. Both she and Baldwin gave evidence that each had an audio tape recorder and tapes as part of their equipment in their bags.
The accused was then taken to the police station in the police car and arrangements were made for his car to be taken there too.
Evidence of relevant states of mind – s68 Summary Offences Act
Senior Constable Baldwin gave evidence that at the point when Constable Cahalan went off to investigate the accused’s claims about ownership of the car he held several suspicions. He said that until further information became available he regarded the vehicle as stolen and to use his words, he had “a duty of care” regarding the property inside the car. He believed that the accused had been in possession of the car for about 40 minutes and he noticed on the front passenger floor of the car a neatly packed and placed bag in a car which was otherwise untidy. He says that attracted his attention to the bag. He said that he had had previous dealings with the accused and from that, and intelligence available to him, he believed that the accused had criminal associates. He believed that one of those associates, one Tisdale, was dealing in drugs and the accused had been driving him around for that purpose. He said that he was also associated with a man called Reed who was believed to deal in amphetamines. He said that in the back of his mind there was a recent shooting incident in Huntfield Heights (formerly Hackham West) although this topic did not assume any prominence until he became aware of the existence of the firearm. He says that he suspected that the bag was either stolen or was drug related. He said that, consistently with his experience of the accused, the accused was courteous and cooperative. He said if the accused had declined to let him see the bag or its contents, that would have raised his suspicions further about the bag. As a consequence of these suspicions he believed that, pursuant to s68 of the Summary Offences Act, he had power to search the vehicle and its contents. Despite having that power he elected to seek the accused’s cooperation for searching the bag. So far as s 68 powers are concerned, it is only what was in the mind of Baldwin that is relevant. Cahalan was not present in the search of the bag. Her state of mind only becomes relevant when considering s74D.
It was put by counsel for the defence, Mr Noblet, that Senior Constable Baldwin’s claims to having the suspicions mentioned above is convenient recent invention. He submitted that when Baldwin became aware that the possess firearm offence was an indictable one, which thereby invoked the provisions of s74D of the Summary Offences Act and threatened the admissibility of the conversations at the car, he, Baldwin, fabricated the suspicions. By that I take counsel to mean that Baldwin did not hold those suspicions at the time he spoke to the accused. Counsel supported that argument by demonstrating that the suspicions did not appear in written form until the third declaration of the witness produced on the evening of the first day of the voir dire. Baldwin conceded that that is the first point at which they were written down, but he said that he had always entertained those suspicions and had discussed them with the prosecutor when he was proofed prior to trial.
Section 68 of the Summary Offences Act reads as follows:
68 Power to search suspected vehicles, vessel and persons
(1)A police officer may do any or all of the following things, namely, stop, search and detain-
(a)a vehicle or vessel in or upon which there is reasonable cause to suspect that-
(i) there are stolen goods: or
(ii) there is an object, possession of which constitutes an offence; or
(iii) there is evidence of the commission of an indictable offence;
(b)a person who is reasonably suspected of having, on or about his or her person-
(i) stolen goods; or
(ii) an object, possession of which constitutes an offence; or
(iii) evidence of the commission of an indictable offence.
(2)In this section –
stolen goods includes goods obtained by the commission of an offence.
It was put that Baldwin was doing no more than taking advantage of the stolen car report, and Cahalan’s temporary absence, to “turn over” the accused’s car. If that was so then it would be a misuse of power and a search would be unlawful, R v Chapman (2004) 79 SASR 342.
Ms Abbey for the prosecution submitted that the conversations demonstrated that the accused consented to the search. In any event, Baldwin did have reason to suspect either that there were stolen goods in the car or that there was an object, possession of which constituted an offence (see s 68 (1) (a) (i) and (ii) respectively.) She submitted that the suspicion need not attach to specific stolen goods or to a specific object, Wilson v R (1994) 176 LSJS 435.
Findings in relation to section 68
For reasons that appear below I do not rely upon the alleged consent of the accused to a search of the car and the bag. I am satisfied that Baldwin did have the requisite reasonable cause to suspect, referred to in s 68 (1) (a). He located the car following the report of it being stolen, and that, together with his prior knowledge of the accused and what he saw in the car was sufficient to arouse the suspicions he said he held. In my view, he was entitled to search the car and the bag. There is no discretionary reason to exclude evidence of the results of the search.
Evidence of relevant states of mind – section 74D Summary Offences Act
The relevant parts of s 74D read as follows:
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—
(i)a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and
(ii)as soon as practicable after the interview, the record must be read aloud to the suspect and the reading must be recorded on videotape; and
(iii)when the videotape recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and
(iv)if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and
(v)at the end of the reading, but while the videotape recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and
(vi)if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the error or omission asserted by the suspect in an addendum to the record of interview.
(2) If the suspicion, or a reasonable ground for suspicion, arises during the course of an interview, the investigating officer's obligations under subsection (1) arise at that point and apply to the interview from that point.
As mentioned above, Baldwin had conversations with the accused in the absence of Cahalan. On her return to the car Baldwin directed her to arrest the accused on firearms offences which she proceeded to do, recording on her audio tape what was said. Both officers gave evidence that at the time they were not aware that possession of a prescribed firearm (pursuant to s 11(1) of the Firearms Act 1977 and Regulation 8 of the Firearms Regulations 1993) was an indictable offence. The prosecutor submitted that offences under the Firearms Act were in fact summary offences until 1 October 2003 when breaches of s 11(1) became indictable. The events subject to this charge occurred on 17 April 2004, some six months later.
Cahalan said she nevertheless had some memory of there being something “different” about firearms which, like the subject firearm, had been altered and she took it upon herself to make enquiries from colleagues as soon as she got to the police station. As a consequence she learnt that one of the offences for which she had arrested the accused was indictable and she realized the need to record her subsequent interview on video. This she did. Regrettably Baldwin, who was also present during the video interview, did not tell her then, or at any relevant time, of the conversations he had had with the accused. Baldwin did not make notes of those conversations until later in the day. The interview lasted from 2.53pm until 3.05pm and Baldwin gave evidence that he made his notes sometime between the end of the interview and 4.28pm. In his declaration he says at that time he went to the cells and seized the accused clothes. Before that he said he had not had the opportunity to make the notes. He said “I was busy with making arrangements with South Coast CIB with regards to the shooting”.
Thus the interview was conducted without any reference being made to the Baldwin conversations with the accused in the street. At the outset of the interview Cahalan referred briefly to the arrest rights she had recorded on her audio tape recorder and she received confirmation that the accused did not want to avail himself of any of those rights.
The definition of the “interview” in s 74C includes several exchanges between the parties. For the purposes of convenience I would describe them in these terms:
1. “the Baldwin conversations” being the conversations with Baldwin in the street;
2. “the Cahalan conversation” being the conversation with Cahalan in the street;
3. “the interview” being the video record of interview.
I refer to the evidence Baldwin gave about why he did not use the audio recorder for his conversations in the street. This exchange took place during cross-examination:
QI take it from your evidence that you didn’t turn your mind to using the audio tape, or you did and you decided not to; which is it.
AI didn’t even consider it at that point, no.
QYour evidence has been that you were thinking about Racic’s association with Tisdale, with Reid, with a possible shooting that had happened, because you’d heard about that through your own intelligence, a background of possible drug involvement and the like. That was part of your background thought process at the time you spoke to Mr Racic, wasn’t it.
AYes.
QYou didn’t think it was prudent at that point in time to grab the audio tape recorder when you decided to speak to Mr Racic.
AThe conversation that I had, you don’t walk up to a vehicle either with a video camera or an audio camera. This is just ludicrous.
QYou explain to the court why that is ludicrous.
AHow many times would you arrest a person, if you were going to arrest a person or talk to a person suspected of committing an offence, that you’d reach into a bag, grab a video or an audio camera and then walk up to the car and start having a conversation with that on, in the street.
QAre you suggesting there’s danger associated with that practice, is that your evidence.
AIt’s just not practical.
QI suggest to you that it was quite practical and quite easy to do.
AI suggest that totally – no, not the correct case.
QWasn’t it your evidence that you didn’t want to inflame the situation, that you knew Mr Racic and you were going to quietly sit with him until Cahalan got back; that was the situation, wasn’t it.
AThe situation was calm. I’d asked him a few questions with regards to what was in the bag. As soon as I found out the shotgun was in the bag, that was the end of the conversation.
QBefore the conversation took place you were comfortable in the presence of Mr Racic, weren’t you.
ACorrect.
QYou were essentially, as I understand your evidence, standing with him not inflaming the situation, waiting for Cahalan to come back with some information.
AThat’s correct, and also operational safety.
QYou also made a decision, did you not, to engage in a conversation with Mr Racic about the bag, didn’t you.
AYes.
QAt that point in time when you’d made that decision and you’ve given your reasons, why was it too difficult in the circumstances to walk over to the vehicle and take out the tape recorder.
AIf I’d walked over to the vehicle, Mr Racic would have had to accompany me. That would have implied that he was under arrest because I would have taken away his consent and his rights. It is not practical to leave a person when we’re investigating an offence by themselves, okay, and then walk off and gram something from your own police vehicle.
QWasn’t it the case that he wasn’t under arrest at that particular point in time. There was a clarification going on and there was no indication whatsoever from Mr Racic that he was going to run, or do a runner, was there.
AI had no indication, no.
I refer now to the evidence that Baldwin gave regarding his failure to give the accused an opportunity to comment on his conversations with him in the street. The following exchange took place:
QI think it was your evidence that you never read your notes out to Mr Racic at any point in time.
AThat's correct.
QAny reason for not doing that.
AThe reason as I stated before. I thought that the firearm offence that we had was a summary offence and the notes had not been written prior to the interview.
QThey were written after the video interview. Let's leave aside the issue of whether it's an indictable offence or not. Isn't it best practice as a police officer to make contemporaneous notes and, where possible, particularly if they relate to a conversation, put them to the suspects so they can comment upon them.
AThat may be the case in some, yes.
QYou're an experienced police officer; you tell the court what's appropriate in those circumstances.
AThat would be appropriate for an indictable offence.
QI'm just talking about any offence at the moment.
AI'm telling you that an indictable offence I would do that.
QWhat about for a summary offence.
AI've not done that all the time, no.
QThe extension of that is providing your notes to a suspect to countersign to essentially say or signify that they agree the contents of the notes. Is that your general practice.
ANo.
QWhy not
AIn this particular case?
QNo, I'm talking in your general practice.
AThey're usually in custody and I don't have the notes written by the time they've already been bailed sometimes.
QIf the suspect doesn't agree with what's in your contemporaneous note, they don't get the opportunity to raise that with you at all.
AIn my experience, sometimes when you read the notes back they don't agree with them anyway and they refuse to sign them
QDo you make a note of –
AThat's my experience.
QWhen that's happened in your case, have you made a note of that
ANo.
QDo you think it would be prudent in those circumstances to make a note about a disagreement between your notes, with a suspect
AThat's his choice. I don't particularly worry about it.
The last four answers evidence a surprising attitude by the police office by what parliament clearly intended when it enacted s74E, albeit that the section applies only to indictable offences. The whole point of the section is to encourage police integrity in questioning suspects. I can readily understand police becoming irritated if false claims are made by suspects when given an opportunity to comment on the accuracy of conversations but these disputes have to be resolved in the usual way and the policy behind the requirement is plainly evident and important.
Suspicions at scene
Baldwin said he suspected the accused of committing only summary offences when the police came upon him in the street. As became clear during his cross-examination that evidence is not easy to reconcile with some of the suspicions he really held about the accused. He conceded that, with regard to the car, a second or subsequent offence of illegally using a car is indictable and stealing a car worth greater than $2,500 is also indictable. It must be said that no evidence was given of the value of the Holden Commodore. Most offences relating to the selling of drugs, particularly amphetamines, are indictable. I do not accept that Baldwin suspected the accused of only summary offences. Section 74D was, in my view, enlivened when Baldwin started speaking to the accused. I accept, however, that neither officer was aware at the time of the arrest that one of the firearms offences was indictable. Cahalan was aware at the beginning of the interview and Baldwin should have been.
Section 74D (1) having therefore become applicable from the point at which the Baldwin conversations began, its provisions were potentially breached in the following respects:
1. there was no video taping of the Baldwin conversations, contrary to placitum (a); I find that this was not reasonably practicable, so there is no breach.
2. there was no audio recording of the Baldwin conversations, contrary to placitum (b); I do not find Baldwin’s evidence of the difficulty or unreality of approaching every suspect with an audio recorder in hand altogether unconvincing. In this case the accused got out of the car and gave his explanations for his possession of the car. Cahalan had gone off to investigate these explanations and the accused appeared cooperative. Nevertheless it might have been awkward then and there to retrieve the audio recorder before saying anything more. I accept that it was not reasonably practicable to audio record the conversation which followed. I find no breach on that account.
3. no notes or account of the Baldwin conversations were communicated to the accused at any time, contrary to placitum (c); Despite what he said, Baldwin had the time and opportunity to make notes. He must have had to wait some time for Cahalan to return from her inquiry and he had time while she audio recorded the arrest rights. He took part in the interview back at the police station and it would not have taken long to make notes of the extremely brief conversations that had taken place. The notes need not be verbatim (see R v Karger (2002) 83 SASR 135 at para 115 per Gray J). I find that in this respect there was a breach of s74D.-
Application of section 74E
Having found non-compliance with s 74D I have to decide whether I am satisfied that the interests of justice require the admission of the evidence. In particular I have to weigh up the competing interests of the parties. On the one hand it is obvious how important to the prosecution case are the admissions made by the accused both in the Baldwin conversations and the interview. The accused admits the critical elements of the offences. Without these admissions proof of his possession of the firearm and the ammunition would be more difficult.
On the other hand, compliance with the well know provisions of s 74D are to be regarded as the norm, and excuse from compliance the exception (see R v King and Pitson (No 1) (1998) 199 LSJS 111 at 119 per Cox J.)
In a very helpful written outline and her oral submissions, Ms Abbey has recited the factors which would tend towards admissibility.
The first is the nature of the non-compliance with s74D – was it innocent or inadvertent or was it deliberate and reprehensible?
As I have mentioned above Baldwin did really have ample opportunity to make handwritten notes of the brief conversations. He gave every appearance of resenting the need to give an accused person an opportunity to comment on the accuracy of notes. He resorted, in my view, to making unconvincing excuses for not complying with the clear terms in s74D(1)(c). His suspicions, he said, were not of indictable offences. He did not have the time to make notes. He claims not to know what Cahalan had found out for herself before the interview, namely, that firearms offence was indictable.
Cahalan reiterated her arrest rights conversations at the beginning of the interview but the critical confessional conversations with Baldwin were not communicated. I do not find this breach of s74D innocent and inadvertent at all. It is, in my view, inexcusable and I am unable for that reason to find it to be in the interests of justice to admit the Baldwin conversations or the interview. This is despite the breach not affecting the cogency of the evidence. I accept that submission made by Ms Abbey. Ms Abbey also put that the breach was objective rather than subjective in the sense, that, although the offence of possess firearm was in fact indictable, that was unknown to the police at the time of the arrest. I have indicated I accept that, but the position was different at the beginning of the video interview. Ms Abbey submitted that it was relevant to consider whether the Baldwin conversations were ultimately recorded accurately. Although the accused gave no evidence on the voir dire about the accuracy of the notes, his counsel put to Baldwin in cross-examination that the accused did not volunteer the bag as Baldwin said but that he had been directed to produce it. What is put is not evidence. I make no finding on the accuracy of the recording, but I indicate that my conclusion about the admissibility of the conversation would not be different if I had found it to be accurate. There appeared no challenge to the accuracy of the admissions. I appreciate how important those admissions are to the prosecution case. I also acknowledge that the interests of justice require that all relevant evidence should go before the court unless it should be excluded under s74E or the common law unfairness discretion (see R v Day (2002) 82 SASR 85 at para [37].
Having considered all matters put to me by the prosecution in favour of admission I conclude it is not in the interests of justice that the interview, consisting as it does of a series of conversations, be admitted. The circumstances of the failure to record the Baldwin conversations and to communicate them to the accused tips the balance in favour of exclusion.
RULING ON APPLICATION FOR TRIAL BY JUDGE ALONE
After I delivered my ruling on the voir dire (without then publishing my reasons) counsel for the accused made an oral application for trial by judge alone. Counsel for the prosecution indicated that she would consent to the application and both counsel told me that if the application were granted the balance of the evidence in the trial might be presented by way of agreed facts. I adjourned while a written application was made and counsel considered how the trial might proceed if the application were granted.
Election for trial by judge alone is made pursuant to s7(1) of the Juries Act. The present application is for a dispensation, pursuant to rule 16 of the Juries Rules, from compliance with rule 8(5) which requires that election for trial by judge alone be made by an accused at his first arraignment in this court. Dispensation under rule 16 may be given if a judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so.
In support of his application, Mr Noblet submitted that there would be a saving of time and cost if the trial were able to proceed in an agreed truncated form only possible in a trial by judge alone. I was handed a document entitled “Trial by Judge Alone – Agreed Facts” which in nine paragraphs set out most of the Crown case. I might mention that this application was being made on the third day of what had been expected to be a three day trial.
Ms Abbey submitted that there were benefits from the prosecution’s point of view if dispensation were granted, in that police who had been drawn from their duties for the trial could now be excused from court appearance. Ms Abbey confirmed the prosecution’s consent to the application. In the circumstances I find that there are special reasons for dispensing with the requirements of rule 8(5) of the Juries Rules and I grant the application for trial by judge alone.
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