R v Reid and Swan

[2000] TASSC 36

[2000] TASSC 36

CITATION:           R v Reid and Swan [2000] TASSC 36

PARTIES:  R
  v
  REID, Kerry Martin
  SWAN, Daniel Robert

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  361/1999
DELIVERED ON:  14 April 2000
DELIVERED AT:  Launceston
HEARING DATE/S:  12, 13 and 14 April 2000
JUDGMENT OF:  Slicer J

CATCHWORDS:

REPRESENTATION:

Counsel:
           Prosecution:  J Ransom
           Accused, Reid:  M Brett
           Accused, Swan:  C Gibson
Solicitors:
           Prosecution:  Direction of Public Prosecutions
           Accused, Reid:  Rae & Partners
           Accused, Swan:  Trezise Partners

Judgment ID Number:  [2000] TASSC 36
Number of paragraphs:  11

Serial No 36/2000
File No 361/1999

THE QUEEN v KERRY MARTIN REID and DANIEL ROBERT SWAN

REASONS FOR JUDGMENT  SLICER J
RULING GIVEN ORALLY  14 APRIL 2000

1. The accused have been charged with the crime of unlawfully setting fire to property, contrary to the Criminal Code, s269.

1. In the early hours of the morning of 6 December police officers attended the scene of a fire which had engulfed a motor vehicle.  Police had good reason to suspect that the vehicle had been stolen and the fire deliberately lit.  A request was made for other officers to attend.  A second vehicle occupied by Constables Burton and Holloway travelled to the scene.  In the course of the journey Constable Burton saw a white Cortina moving in a direction opposite to the burnt vehicle.  Earlier that morning Constable Burton had been suspicious of the conduct of the three occupants of the Cortina and had spoken to the occupants.  It would appear that at the time of the first meeting the men, including these two accused, were in the process of illegally stealing petrol from the vehicle which was eventually taken and destroyed.  As the Cortina went past the police vehicle Constable Burton's suspicion was aroused by the presence of property (in particular a child's car seat) which he had not previously seen in the vehicle.  He intercepted the Cortina and an examination showed the presence of property in the body and the boot of the vehicle.  Constable Burton had good cause to suspect that some of the property had been stolen and that the occupants were involved in the destruction of the vehicle.  The officer requested the occupants to remain at the scene.  He made further inquiries of the officer who had attended the scene of the fire.  He had good reason to believe that the items found in the vehicle had been stolen from the stolen and burnt vehicle.  Evidence later obtained showed that belief to be correct.  At some stage the accused, Reid, complained of an injury to his leg.  It is not necessary to find whether the injury was real or feigned.  Reid lay down on the median strip which caused Constable Burton to request another unit to attend to transport the man to the police station.  Two other units attended the scene and the three suspects taken in separate vehicles to the station.  The accused claim that they were arrested at the scene, handcuffed and taken to the police station.  Neither claim that they were told of a formal arrest but state that each believed that he was unable to leave except with the officer.  Each rely on the claimed act of handcuffing.  The Court does not accept the evidence of either accused.  Given the nature of this trial and that the evidence might be given before a jury, it is not appropriate to make extensive findings in relation to credibility or the reasons giving rise to such findings, other than where necessary to determine the issue of reception of evidence.  The Court accepts the evidence of Sergeant Meyers and Constables Burton and Higgins.  Constable Burton was intent on taking the three occupants to the police station and was prepared, if necessary, to arrest them to achieve that purpose.  But it was not necessary for him to effect an arrest.  Reid was lying on the ground and went voluntarily to the station with Sergeant Meyers who was the watch sergeant.  Swan went, without demur, with Constable Holloway whilst Constable Burton drove Reid's vehicle.  It may be that Swan believed he had no option but to remain at the scene and to attend the police station, but the holding of that belief does not constitute an arrest within the meaning of the principles discussed in Sammak v R, A33/1993.  There had been no arrest at the scene.

1. The three occupants were taken to the police station.  Arrangements were made for Reid to be examined by ambulance officers.  An ambulance was summoned to the station and despite his reluctance Reid was examined by three officers who were satisfied that he was fit to remain at the station and there was no cause to remove him for medical treatment.

1. Constable Burton made preparations for the conduct of an interview with the three occupants.  He decided to interview the suspect known as Davies who apparently had provided a false name but whom he believed would be the most cooperative.  At that stage Reid was outside whilst Swan was asked to wait in the room adjacent to or forming part of the general inquiries room.  It is clear that none of the three persons were, at that stage, brought before a Custody Officer as provided by the Criminal Law (Detention and Interrogation) Act 1995, s15. Neither accused claims that there had been a formal arrest effected at the police station. Each believed that they had no option but to remain there at least until requested to take part in an interview. The finding is that there had been no formal arrest until after each had been interviewed. However, that finding does not resolve the issue.

1. The status of each accused was that, in law, each was free to leave the police station but that if either attempted to do so he would be arrested.  The Court accepts that¾

(1)Constable Burton had sufficient cause to arrest the accused at the scene of interception and at the police station before the conduct of an interview.

(2)He chose not to exercise that power.

(3)He decided to leave the accused in the confines of the police station so as to give them greater freedom of movement and to avoid the detention of Reid in the lock up.  His decision not to arrest was not a result of a desire to lessen or weaken the resolve of the suspects nor to act unfairly to either person.

(4)Had either accused attempted to leave the station prior to interview he would have been arrested.  Each of the accused was made aware of that position.  Each accused believed that he had no option but to remain at the station until the interviews and attendant procedures had been conducted.

(5)Each accused was effectively in the custody of a police officer.  Their status was tantamount to that of a person subject to a "de facto" arrest in the sense discussed by the Full Court of the Supreme Court in R v Harris (1995) 64 SASR 85 and considered in general terms in Sammak.  That status commenced as of the time each accused was placed into a police vehicle.

1. It follows that effect ought be given to either the terms or spirit of the Act. It is not necessary for the purpose of this ruling to decide whether circumstances creating an effective custody require the application of the Act, s3 and s15. Leaving aside the question of voluntariness raised in the case of Swan, the issue is one of the exercise of discretion dependent on the principles stated by the High Court in Cleland v R (1982) 151 CLR 1. Those principles are ones based on fairness and a need to discourage untoward or unlawful conduct by investigating officers afforded power by society. In this case any finding of unfairness dependent on a breach of a provision of the Act must be examined in the light of those principles. In this case breach of the provision of the Act, whether in law or spirit would not, of itself, require the exclusion of the evidence of statements made by either accused at a later time. The provisions of the Act, s9, require such an approach.

1. In this case there was no unfairness on the part of the investigating police or impropriety in the treatment of either accused. The only breach of the Act, assuming compliance was required in law, was that of s(6)(1)(b). In all other respects the terms of the Act have been complied with. Had either accused been immediately brought before a custody officer, Constable Burton was still entitled to detain both for a reasonable time for the purpose of questioning by virtue of the Act, s4(2). Constable Burton was afforded reasonable time in accordance with the circumstances stated by s4(4)(a), (b), (d), (f) and (g). Constable Burton complied with the provisions of the Act, s6(1)(a) and (2) and s8 and the notifications required by s15.

1. Both accused were advised of their right to communicate with a friend or relative.  Swan was asked to nominate an appropriate person to be present during the intended interview and when such person was unavailable an alternative appropriate person was obtained and remained with Swan during the interview and until the time of release from custody.

1. That the presence of the accused at the police station was known to the station officer, the fact that arrangements were made for a medical examination of Reid and the general treatment of each accused are significant matters in any assessment of fairness.  Constable Burton acted in part for reasons of convenience to both himself and the accused.  He was able to concentrate on his investigation and conduct the interview confident in the knowledge that each accused was nearby.  Doubtless he took into account that he need not have an officer remain with Swan pending the interview and was not required to have Reid processed in and out of custody.  But it was also his intention to make the stay of each accused at the station more comfortable.  Each interview was conducted fairly and properly and the requirements imposed by the application of the Judges Rules were met.  (R v Deverall [1999] Tas SR 106). There was no unfairness.

1. A separate argument was put based on a claim of involuntariness on the part of Swan.  There is no basis for any finding other than that Swan voluntarily made statements to police.  He was properly warned and an appropriate person was present during the interview.  His claim that he was handcuffed is rejected.  His demeanour during the course of the interview demonstrates many things but an overborne will is not one of them.  Indeed, it was he who volunteered information unsought by police as for example, the speed at which he had driven.  He felt confident enough to call the interviewing officer stupid and refer to the police as pigs.  His claim that he thought that he would be obliged to remain in the cells or waiting room until he agreed to make a statement is not accepted.  There had been a voluntary statement.

1. The evidence on both cases will be received into evidence on the trial.