R v SAUNDERS (No 2) - [2022] SADC 14

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SAUNDERS (No 2)
[2022] SADC 14
Reasons for Ruling of his Honour Judge Soulio
29 October 2021
CRIMINAL LAW
Accused charged with aggravated serious criminal trespass in a place of residence, and two counts of theft - accused was interviewed by police and made certain admissions - application to exclude the interview on two separate grounds, one: - whether accused was provided his arrest rights - whether accused understood his arrest rights - whether police proceeded to interview accused after he had expressed an intention not to answer questions; and two: - whether accused suffers from a reduced intellectual functioning such that he was vulnerable to confabulate or make false admissions - whether admissions made in the interview were false - whether interview should be excluded.
District Court Criminal Rules 2014 (SA) r 49; Summary Offences Act 1953 (SA) 79A, referred to.
R v Pfitzner (1996) 66 SASR 161; R v Swaffield [1998] HCA 1; R v Smith (1992) 167 LSJS 271; Cleland v The Queen [1982] HCA 67; R v Halse (1980) 25 SASR 510; R v Ireland [1970] HCA 21; R v Li & Anor [1993] 2 VR 80, considered.

R v SAUNDERS (No 2)
[2022] SADC 14
Introduction

The accused is charged with aggravated serious criminal trespass in a place of residence, and two counts of theft arising from an incident on 31 March 2020 when it is said he entered a house at Royal Park, when the lawful occupants were present, and stole various items. He gave an interview to police in which certain admissions were made.
Application to Exclude Evidence of Interview
There is an application brought pursuant to r 49 of the District Court Criminal Rules to exclude the interview on what amounts, essentially, to two separate grounds.
The first encompasses questions as to whether the accused was provided with his arrest rights, whether he understood the rights, and whether police proceeded to interview him after he had expressed an intention not to answer questions.
The second encompasses questions as to whether the accused suffers from a reduced intellectual functioning such that he is vulnerable to confabulate or make false admissions, whether admissions made in the interview were false, and whether the interview should be excluded on that basis.
Preliminary Ruling
In an earlier preliminary ruling delivered on 19 August 2021, I noted that counsel for the Director of Public Prosecutions (‘DPP’) had made the submission that the question of whether the interview should be excluded, on the basis, in effect, of unreliability, was not an appropriate question to be considered as a pre-trial issue at all. Rather it was said to be an issue to be left for the trier of fact, on the basis that the evidence proposed to be called on the pre-trial application by counsel for the accused, could be led before the trier of fact whether judge or jury, in order to determine whether any and if so what weight should be attached to the admissions.
Counsel for the DPP had relied on the decision in R v Pfitzner. In considering the appeal there, Doyle CJ said:[1]
In my opinion it is clear enough from this that the presence of a mental disorder which makes it possible that a confection is unreliable, in the sense that the mental disorder is such that one cannot accept it as intrinsically likely to be true, is not sufficient to render a confession inadmissible. That is a matter which goes to weight, and obviously involves a consideration of the terms of the confession and, most importantly, the extent to which the contents of the confession are confirmed by independent proof of the events to which it relates.
[1] R v Pfitzner (1996) 66 SASR 161 p 177.
Doyle CJ went on to say:[2]
It also seems to me the tenor of the judgments is that it will only be in an exceptional case that the confessional statement will be excluded, and that ordinarily one would expect issues of unreliability to be dealt with by the jury in deciding the weight to be given to the confession, rather than by the judge in making a decision to exclude the confession.
[2] R v Pfitzner (1996) 66 SASR 161 p 177.
In that preliminary ruling, on 19 August 2021, I came to the view that the determination of whether the present case is so exceptional as to justify the exclusion of the interview, rather than leaving the assessment of the weight of the evidence to the trier of fact, in this case a jury, required an inquiry, and that I ought to hear the evidence of Dr Fitzgerald, who had assessed the accused and expressed her opinion as to the accused's level of intellectual functioning, before determining whether the discretion to exclude was enlivened and whether it should be exercised.
The Hearing of the Application to Exclude Evidence
For that purpose I received into evidence the declarations of certain prosecution witnesses, the reports of Dr Fitzgerald, and heard oral evidence from Dr Fitzgerald. I heard submissions from counsel.
During the course of that process I expressed the tentative view that, on the evidence, the accused's level of intellectual functioning in the context of the content of the interview, was not such as to warrant the exclusion of the evidence prior to trial. That, quite properly, was ultimately conceded by counsel for the accused, and accordingly the second ground of the application fell away.
Consideration
I turn then to a consideration of the first limb of the application. That was expressed in the following terms: that the prosecution not lead evidence as to the conversation or interview between the applicant and police on the grounds that:
1.The applicant was not provided with his rights in an appropriate manner.
2.The applicant did not understand the right to refrain from answering police questions and police did not make any effort to clarify that understanding.
3.The applicant stated that he did not wish to answer questions and police proceeded to interview him anyway.
It appears, on the face of the grounds so stated, that there is something of an internal tension in the assertions that the applicant was not provided with his rights, or did not understand his rights, but on the other hand that he stated that he did not wish to answer questions and police proceeded to interview him anyway. For reasons which will become apparent, I do not consider the propositions to be inherently inconsistent.
Section 79A of the Summary Offences Act provides that where a person is apprehended by a police officer, the person is, while in custody, entitled to refrain from answering any questions. A police officer is required to inform the person of his rights under the section, and to warn the person that anything that he may say may be taken down and used in evidence.
The law which governs the admissibility and exclusions of confessions, stated in general terms, is to operate on a broad principle based on the right of a defendant to choose whether to speak or not.
As was observed in R v Swaffield:[3]
Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards.
[3] R v Swaffield [1998] HCA 1 at [91].
The test takes into account issues including voluntariness, unfairness and exclusion on public policy grounds. The question of involuntariness may arise in many circumstances; for example, where a person through intoxication is 'just gabbling' or is so intoxicated that he is incapable of making a free choice as to whether to speak or remain silent.[4] I bear in mind that there is no requirement of a finding of unlawful, improper, or unfair conduct by police in considering the issue. The issue is whether the reception of the evidence would be unfair to the defendant.[5]
[4] R v Smith (1992) 167 LSJS 271.
[5] See Cleland v The Queen [1982] HCA 67.
I bear in mind, as was properly submitted by counsel for the DPP, that the seriousness of the offence is an important consideration in determining whether, if the discretion is enlivened, it should be exercised.[6] Here the alleged offences are clearly serious offences having regard to the nature of the offences, and the maximum penalties which apply.
[6] See R v Halse (1980) 25 SASR 510.
I turn to a consideration of the characteristics of the accused. He did not give evidence on the voir dire, and therefore did not give evidence that he did not understand the caution, nor as to the issue of voluntariness in any way. Accordingly the application was founded on the evidence of Dr Fitzgerald, to whom I have referred, and a plain reading of the record of the interview.
The Accused’s Answers at Interview
In considering Dr Fitzgerald's evidence, it is perhaps important to first note that the formal interview at the Port Adelaide Police Station, following the accused's arrest, commenced with an inquiry as to the accused's name, date of birth and address. He was asked whether he understood that he was under arrest and said 'yes'. He was then asked, and I cite the passage:
Alright so what I'm going to do is I did provide you with your arrest rights, when we arrested you earlier tonight. So I’m going to reread them to you and your responses for the video camera. Is that alright?
The accused answered 'yes'. I anticipate that may have been a response to the question 'Is that alright?'.
The interviewing police officer then said this:
And then at the end you can tell me whether you agree or not. Alright so you’re entitled to make in the presence of a Police Officer one telephone call to a nominated relative or friend to inform them of your whereabouts. Do you understand this right? Your response was yes. I said do you have any requests in relation to this right, you said no I don't. Then I said you’re entitled to have a solicitor, relative or friend present during any interrogation or investigation to which you may be subjected to whilst in custody. Do you understand this right, you said yes I do and I said do you have any requests in relation to this right, you said no I don't. Then you said if Eng, I said if English is not your native language you are entitled if you so require to be assisted at an interrogation by an interpreter, do you understand this right, you said yes I do and then I said do you have any requests in relation to this right, you said no. I then said you shall while you remain in custody be entitled to refrain from answering any questions. Do you understand this right, you said yes and then I said do you have any requests in relation to this right and you said no. I then said I warn you that anything you say may be taken down and given in evidence, do you understand and you said yes and then I then said after you've been taken to the Port Adelaide Police Station you are entitled to apply to the Officer in Charge for release on bail, do you understand and you said yes. Is that our correct conversation that we had earlier.
The accused answered ‘yes’.
The police officer then reiterated the accused's right to silence in the following terms:
No worries. Alright so while the video recording equipment is activated I'm going to ask you some further questions. Alright so you’re not obliged to answer them but anything you do say is being recorded and may be given in evidence. Do you understand?
The accused said 'Yes'. The police officer said 'What do you understand by that?' The accused said 'That I was responsible for my actions and that I should have been more smarter'.
Dr Fitzgerald’s Evidence
Dr Fitzgerald assessed the accused in October 2020. I note from her report of 23 October 2020 that when she commenced the assessment the accused had said that he was not aware that the assessment was to take place, but was willing to participate. That appeared somewhat unusual, in that arrangements must have been made for him to be assessed, an arrangement of which he must have been aware.
Dr Fitzgerald set out something of the accused's history and elicited, amongst other things, that the accused had been prescribed risperidone in order to deal with auditory hallucinations; and that he had suffered what appears to have been a closed head injury when he was under the influence of alcohol and to use his words 'ran in front of a bus to straighten myself out'. There appeared to have been a period of post traumatic amnesia. The accused had no memory of being taken to hospital by ambulance following that collision, nor of a period thereafter, remembering only that he had woken up in hospital. Dr Fitzgerald was not able to ascertain the period of post traumatic amnesia. The accused also had a history of drug abuse.
He was assessed as having an intelligence quotient of 71, which Dr Fitzgerald said was a borderline intellectual disability, but said that intellectual disability was only formally diagnosed at an intelligence quotient below 70.
I pause to observe that having seen the DVD footage of the interview, it might be said the accused presented in an unusual, and indeed oddly detached manner.
Dr Fitzgerald expressed the view that the accused's level of intellectual functioning meant that he was vulnerable to being exploited or manipulated, and that he did not have the same capacity as the general population to think through the consequences of his actions.
Dr Fitzgerald also made the observation that the accused's behaviour during the interview was somewhat unusual. She was able, on all of the information available to her, to make a probable diagnosis of foetal alcohol syndrome disorder which, together with the accused's reduced intellectual functioning, she said meant that he was quite vulnerable to suggestion.
She noted that the accused had demonstrated that he understood most of the questions put to him by police throughout the interview but said: 'He did not appear to understand that he was not obliged to answer questions.' I bear in mind that ultimately that is a decision for me, although I note Dr Fitzgerald's observations in that regard.
Dr Fitzgerald also observed that whilst the accused had a relatively reduced level of intellectual functioning compared with the general population, he was not naive to the justice system. She said it was likely that he understood the majority of what was being said to him, although he did express confusion as to his right to refrain from answering questions. I will return to that topic.
Dr Fitzgerald reiterated that view in evidence.[7] In cross-examination it was put to her that the accused’s response to the police question: “Do you understand that I’m going to ask you some questions? Do you understand that you don’t have to answer them if you don’t want to?” namely: “I really don't want to because I know what I'm here for.” suggested that the accused knew he didn’t have to answer questions. Dr Fitzgerald said:[8]
No, I didn't feel that. I felt he was saying that he didn't want to answer questions 'I don't really want to because I know what I'm here for', but then he went straight into answering questions. I didn't feel confident that he understood that he didn't have to answer questions based on that response.
[7] T 19.
[8] T 20 L 22.
I regard the accused’s answer “I don’t really want to because I know what I’m here for” as entirely non-responsive and as indicating, prima facie, that the accused did not understand that he was not obliged to answer questions put by the police officer; nor did he necessarily understand that anything he did say was being recorded and may be given in evidence.
After the accused’s answer, which I characterise as non-responsive, the police officer did not seek further clarification of the level of the accused's understanding.
Insofar as the accused could be said to have understood his rights, I regard his answer 'I really don't want to because I know what I'm here for’ as being an expression of the exercise of that right.
The police officer's response to the accused’s answer was not to seek clarification, nor to reiterate that any answers were going to be recorded and might be used in evidence. Nor did he cease the interview. Rather, he said 'Okay well I'll give you that opportunity to talk about it okay, but do you understand that you don't have to say anything if you don't want to?'. A. 'Yeah, I understand'. The police officer then referred to an incident on 31 March, two days earlier, and said 'Do you want to talk to me about what happened?', not I observe, “Do you want to answer questions about what happened?”.
The interview then followed. I accept that thereafter the accused made admissions relevant to what is, as I have said, a serious offence.
Dr Fitzgerald was asked about that passage in cross-examination.[9] She was asked about the police officer's reiteration 'Do you understand that you don't have to say anything if you don't want to?', in the following terms:
So given that has been put to him a further two times in more simplistic language, do you still maintain that he would have had trouble understanding the caution?
Dr Fitzgerald said:[10]
I believe that he I just felt that I didn't get a good sense from the transcript and from watching it [which was reference to the recording] that he truly did understand based on his responses. I don't think he is incapable of understanding that instruction or that information, I just wondered in that setting and in that situation and in the way that he responded, I didn't feel confident that he really got it, that he didn't have to answer questions …
[9] T 23-24.
[10] T 24 L 2.
I have formed the view, having regard to the evidence relating to the accused's level of intellectual functioning, and having seen the recording of the interview, and having read the agreed transcript of the interview, that first the accused did not understand that he was entitled to refrain from answering questions at all; and second, that insofar as the proposition was reiterated to him in simpler terms, namely, that he did not have to answer questions, he expressed his desire to not answer questions.
In coming to that view, I do not consider that the interviewing police officer acted in a way which was improper, albeit that I formed the view that the police officer should have made a further inquiry, or sought to establish that, indeed, the accused understood his right to remain silent. I consider that would have been a particularly important aspect of the interviewing of this accused, having regard to his Aboriginality, and having regard to his presentation, which should have alerted the police officer to the reduced level of intellectual functioning that besets the accused.
In considering the application to exclude the interview, I bear in mind that it is well-established that police should not persist in interrogating a suspect if the suspect has indicated that they do not wish to answer further questions.[11] However the fact that questioning continues after the expression of such a desire to exercise the right, does not mean that interview is automatically excluded but, rather, that the discretion to exclude the evidence is thereby enlivened.
[11] See R v Ireland [1970] HCA 21.
Whilst in R v Li,[12] the court held that the breadth of the concept of voluntariness extends to a situation where answers are given by an accused person who lacks understanding as to when such questions need not be answered, and as a result feels compelled to participate in the interview process, it is not necessary to find that the interview here was involuntary. Rather, having regard to my findings that the accused did not understand his right to silence, and that, insofar as the accused did understand that he did not have to answer questions, he had exercised that right, mean that the discretion is enlivened.
[12] R v Li & Anor [1993] 2 VR 80.

Although I bear in mind the seriousness of the offence, having regard to the matters to which I have referred I consider that the circumstances, taken as a whole, mean that the admission of the evidence of the interview would constitute an unacceptable unfairness to the accused. I exercise the discretion to exclude the evidence of the interview.
I will hear from counsel as to further orders that may be required.