R v Schubert No. DCCRM-03-299
[2004] SADC 53
•25 March 2004
R V SCHUBERT
[2004] SADC 53Judge Bishop
Criminal
Tania Louise Schubert (“the accused”) is charged with possessing methylamphetamine for supply on 30 December 2002 at Murray Bridge: contrary to section 32(1)(e) of the Controlled Substances Act, 1984. Upon her arraignment, the accused pleaded not guilty and a hearing on the voir dire was conducted to determine the propriety of admitting evidence that the Crown proposed to adduce at trial. Oral evidence of Detective Senior Constable Wilson (“Mr Wilson”) was presented, together with his declaration and two video cassettes containing records of interviews between him and the accused on the day of her apprehension. The accused did not give evidence.
The facts
Upon all of the material presented on the voir dire, I am satisfied and find that the following position (with my emphasis) has been established.
1.About 9.25am on 30 December 2002, together with other police officers, Mr Wilson attended at 25a Hill Street, Murray Bridge, during investigations into the robbery of and assault occasioning actual bodily harm to an elderly man on 24 December 2002 at Prospect. He there spoke with the accused, who was 25 years old, in the kitchen of the house at that address. Their conversation, which began at 9.35am, was recorded on video and audio equipment. Mr Wilson immediately arrested the accused for those offences and proceeded to inform her of her rights conferred by section 79A(1) of the Summary Offences Act, 1953 (“the Act”), in compliance with sub-section (3) of that section.
2.Upon informing the accused of her entitlement to make a telephone call to a nominated relative or friend to tell that person of her whereabouts, Mr Wilson asked her whether she wished to do so. The accused replied in the affirmative. The conversation proceeded:
“Q7 Who would you like to ring.
A Do I ring a lawyer or do I ring my parents.
Q8You can ring anybody you like, you can also ring a lawyer when you get back to Murray Bridge Police Station.
A Ummm ... (unintelligible crying) ... who can help me. Sorry.
Q9 Think about that one, alright.
AOh God no, I don’t know can you tell me I just really don’t know because I know what’s been said and I know how it, I know everything’s pointing at me, so I don’t know who can help me the most.
Q10 So you don’t know at this stage.
A No. But then ...
Q11 We’ll work it out when we get back to the station, alright. OK
A Well I’ll think.”
3.Upon informing the accused of her entitlement to have a “friend, relative or solicitor” (cf section 79A(1)(b)(i) of the Act, “solicitor, relative or friend”) present during any interrogation or investigation to which she may be subjected while in custody, Mr Wilson asked:
“Q12 ...Do you want to arrange for someone to be present.
A Yeh. But I don’t know.”
She then acknowledged her understanding that, while she remained in custody, she was entitled to refrain from answering any question. She also signed the pro forma document (exhibit VDP4) which Mr Wilson produced, thereby acknowledging that she had been informed of those rights.
4.At that stage of the conversation, in Mr Wilson’s declaration the accused was “distressed/crying and the tape was stopped for a short time for her to compose herself.” (That the accused was then distressed and crying was clearly apparent upon the video tape (exhibit VDP2) being played.) Prophetically, Mr Wilson terminated that part of their conversation with the words, “OK the time is 9.38 and that ends the rights.”
5.When that video-recorded conversation resumed a short time later, Mr Wilson produced a search warrant and told the accused that police were going to search the house. The accused then asked whether anyone had seen what occurred in the alleged offences, to which Mr Wilson replied:
“Q23Like I said, the evidence that we have is that you were involved, OK. So when we get back to the police station, on video, we’ll ask you if you want to give your account of the story, you can, OK. Do you understand.
A Can I have some more water. I look a fool”
At that point in the conversation, the accused punched herself in the forehead, stood up and appeared to be upset.
Q24 And when we get back ...
A I look stupid, can you erase that. Please.
Q25 When we get back – just relax ....
A Yeh, no please can you erase that.
Q26 Just relax.
A Please
Q27 When we get back we’ll get you to talk to a solicitor, OK.
A No, please, can you erase that.
Q28 We’re going to search the house now. OK.
A Yeh, you can do that.
Q29 OK.”
The house was searched by police officers and seven small plastic bags containing white powder were found in a small metal container in a wallet in a red bumbag. (The contents of those seven bags are the subject of this trial.)
6.The videoed conversation then continued in the accused’s bedroom, where the accused acknowledged that the bags contained “speed” and that, “they’re mine ... to get rid of.” Mr Wilson told her that she did not have to answer “any questions in relation to the speed” and that anything she said would be taped on video. Notwithstanding his previous statements to the accused that she could telephone a lawyer when she was at the Murray Bridge Police Station (Q8), that “We’ll work it out when we get back to the station, alright. OK.” (Q11) and that “When we get back we’ll get you to talk to a solicitor” (Q27), Mr Wilson proceeded to ask the accused numerous questions and obtain answers incriminatory of her about her possession of that powder, during which time she again began to cry. He then said,
“We’ll have a talk further when we get back to the station on video OK. While we have the video running can we just go outside Dave. Is there anything else you want to video Merv.”
7.Mr Wilson took the accused out to the driveway of the house, where a Holden Commodore sedan was parked. He produced keys which, he told her, had been dropped where the offences had been committed at Prospect. With a series of questions, he proceeded to establish that the Commodore and the keys (which were for the Commodore) belonged to the accused.
8.About 10.35am, Mr Wilson and other police officers took the accused to the Murray Bridge Police Station (“MBPS”), arriving about 10.40am. Commencing at 11.52am, Mr Thomas conducted a video and audio record of interview with the accused, at which Ms Bianca Gottweihs, a female friend of the accused, was present. (That the accused was then comparatively calm and composed was apparent upon the video tape (exhibit VDP3) being played.) The interview began with Mr Wilson seeking to obtain the accused’s agreement as to what had previously happened that day. Relevantly, he asked (in questions again numbering from one):
“Q12At 9.35 I gave you your rights and advised you that you were arrested, on video and audio. I also showed you a general search warrant and explained that. Do you agree with that. [No pause for a reply]. And I told you that we were going to search the house. We searched the house and [a police officer] located ....
AOh hang on, I’m not saying yes as in like I’ve got – like I agree with what you’re saying what you found, but I’m not saying that I agree with ...
Q13 No – yeh, all I’m saying is do you agree with what I’m saying.
A Yep. Yep.
Q14Alright, you’re not admitting to anything, you’re just agreeing that that’s what actually occurred. OK. So just ...
.....
Q25And when we got back here we brought you to the interview room and you said that you wanted a friend called Bianca present. You made numerous phone calls and then you ended up getting on to Stewie, is that right.
AMmm. [To which part of that triplex question this response was intended to relate it is not possible to determine.]
Q26And you left a message with him to get on to Bianca and that was at 10.55. And then at 11.50 Bianca actually arrived and that’s when we started the interview. Do you agree with all that.
A Yep.
Q27OK. OK what we want to do is, I’m just going to go through your rights again, just so that you know them. OK You’re under arrest for Robbery in Company and Assault Occasioning Actual Bodily Harm. I must warn you that anything you say may be taken down and used in evidence. Do you understand. And you said yes.
A Yeah.
Q28Alright. You’re entitled to make, in the presence of a member of the police force, one telephone call to a nominated relative or friend to inform the relative or friend of your whereabouts. Do you wish to ring someone to inform them of your whereabouts. And you said, yes, and then you were a bit worried, you didn’t know who to ring, you said I don’t know, OK ... [In this question, Mr Wilson did not restate what he had previously told her in Q8 and Q11; see paragraph 2, above.]
A ....(unintelligible) .... my sister please, it’s too hard ...
Q29I then said you’re entitled to have a friend, relative or solicitor present during any interrogation or investigation to which you may be subjected to whilst in custody, do you want to arrange for someone to be present. You said yes and then you also said that you don’t know. [What she had said, in reply to Q12 (in paragraph 3, above) was, “Yeh. But I don’t know”, meaning that she didn’t know who could help her the most; see her answer to Q9 (in paragraph 2, above).] Whilst you remain in custody you’re entitled to refrain from answering any questions. Do you understand. You said yes. And then you signed it down the bottom. Do you agree that you signed those rights, and it was 9.38 on 30/12/02.
A (inaudible response).
Q30OK, what we’re going to do now is ask you some questions in relation to the robbery with violence and assault occasioning that occurred on the 24th of the 12th. You don’t have to answer those questions but anything you do say is going to be taped on video and audio. Do you understand that.
A Yes.”
9.In that interview, although Mr Wilson told the accused (in Q27) that he was going to go through her rights again, “just so that you know them”, close scrutiny of what was said indicated that he did not do so. What he did was to repeat (incompletely and inaccurately) what had been said between them at 9.35am (when the accused was clearly distressed) couched as statements to which she had supposedly agreed. I was not surprised at the accused’s discernable response to Q28, “it’s too hard”. In my view, that part of the interview would have been most difficult for many persons to have followed and, more importantly, could not have served to remind the accused of those rights which she had been given at 9.35am (when she was distressed) and was not again given after she had regained comparative equanimity.
10.In that interview, after asking the accused 226 questions (which she answered) about the offences at Prospect, the questioning continued about this alleged offence:
“Q265....I just want to ask you, we’ve finished with that. I just want to ask you some questions in relation to this speed that was found in your house this morning. You don’t have to answer the questions but anything you do say is going to be taped on video and audio, do you understand that. Do you want to answer any questions in relation to the speed.
AJust that umm.... I was holding on to it for a guy that I was seeing, and I was supposed to give it to him .... and so I’m only guilty of holding it ...”
A further 47 questions were asked and answered about this alleged offence. The interview concluded at 12.45pm.
11.Commencing at 12.48pm that day, Mr Wilson conducted a further video recorded interview with the accused at the MBPS about her undergoing a forensic procedure relating to the Prospect offences. She was told that she was entitled to a reasonable opportunity to communicate with a legal practitioner of her choice, but she declined the offer. (Ms Gottweihs was still present.) She consented to that procedure, the carrying out of which was also video-recorded and concluded at 1.15pm
12.On the day of her arrest, the accused participated in five separately videoed conversations (or interviews) with Mr Wilson – in her kitchen, in her bedroom, in her driveway and two in the MBPS.
The evidence
In his evidence, Mr Wilson said (with my emphasis) that:
· when he gave the accused her rights in her kitchen, she appeared distressed in that she was sobbing and appeared mad at herself that she had been caught (T32);
· when they arrived at the MBPS, the accused said that she wanted Mr Gottweihs to be present during the interview (T33);
· there was no reference in either his notes or declaration to a conversation with the accused about calling a lawyer, because she made the decision to have her friend attend (T38);
· by his remark in Q27 at the accused’s house, “When we get back we’ll get you to talk to a solicitor, OK”, he did not give her to believe that he would be contacting a solicitor, rather “if she wanted to” (T40), although he conceded that his remark did read as if he were holding out to her that, because of her uncertainty about which way to turn, he would get her to talk to a solicitor (T41);
· he was not sure if there was a conversation with the accused about that topic [Q27] at the MBPS (T41) although, “there probably was a very short one” which was not recorded, “Because she was asking the question” (T41). “What I’m saying is, there was – probably walked into the interview room, she has asked to ring her friend and we have, we have got her friend down for her” (T41);
(That evidence was inconsistent with the indication previously given by Ms Abbey, counsel for the Crown, that “he will give evidence that he did take that further because when they got back to the police station, that is in fact what he asked her ‘Who do you – [want]’” (T20.)
· either he walked into the interview room and asked the accused ‘Okay, who do you want present?’ or the accused automatically said ‘I want Bianca present’ (T54);
· while agreeing that it was an important decision for the accused to be making, he could not say whether that conversation took place in the interview room or on the way to the cells (T55);
· perhaps, in hindsight, he should have somewhere made a note of what was said between them in that conversation (T60) although, perhaps again, he did not say anything – he did not know what was said (T60); there is a vacuum (T61);
· by his remark in Q27at the accused’s house, he meant ‘When we get back we’ll let you talk to a solicitor’, - that is, if she wanted to (T64) – a remark which he made as part of an effort to calm her down after she had punched herself in the forehead (T66);
· on reflection, it would have been more prudent for him to have had the video recorder operating when there was the discussion about who was going to be present at the interview, but he did not have the opportunity (T68); “it’s just probably one of those things that’s just happened where she has wanted to get Bianca down there and that’s what’s occurred” (T68); “all I can say is it would have been a request by her to get Bianca there” (T69);
(Clearly Mr Wilson prevaricated, in evidence, between him having asked the accused whom she wanted to be present at the interview and the accused having told him whom she wanted there.)
· he had asked the accused questions in and near her house after he had told her that he would talk to her upon their return to the MBPS [see Q8, Q11, Q23 and Q27] because he wanted to “clarify things”; it was her decision whether she wanted to answer the questions or not (T89);
· although the accused was distressed when she was given her rights, he did not think that it would have been more appropriate to give her a chance to calm down before giving them to her, “Because she was upset that she had been caught for bashing an old man. It was my duty to give her her rights ... She wasn’t upset with me” (T93 – 94);
· when in her kitchen the accused replied to his Q27 by saying, “No, please, can you erase that”, he ‘probably’ then thought that she was endeavouring to convey that she did not wish him to get her to talk with a solicitor back at the station (T97); that ‘definitely’ was the reason why he did not pursue that aspect of Q27 upon returning to the MBPS (T98); if she had not said “No” in that answer, he would ‘possibly’ have acted differently back at the MBPS, “unless – she’s asked for Bianca to come there” (T98);
(When the accused’s answer to Q27 is read in context with her answer to Q25, it is clear that she had said “No please can you erase that” before Mr Wilson had asked Q27. Her “No” in answering Q27 was said in response to Mr Wilson’s exhortation that she should relax, not in reply to his having said that he would arrange for a solicitor when they returned to the MBPS.)
· although he taped every other conversation with the accused that day, he did not tape the conversation in which she said that she wanted her friend to be present, “Because it hasn’t been normal, that ‘Who would you like to have here?’. She said ‘Bianca’, and it’s as much as one question, ‘Who would you like to have here?’. I know it’s a conversation but it’s me doing the right thing by her, ‘Who would you like to have here?’. I can’t see anything sinister in what’s occurred as much as I’m trying to do her a favour” (T103); that exchange took place in the interview room, “I would say”; I didn’t turn on the video for that conversation, “Because you arrange the person that you want there before you commence the interview” (T103-104); and
· with regard to the accused’s distress when he began speaking with her that day, he did not think that there was reason to delay giving her those rights (T116), although he had previously delayed – in violent situations, with persons who are really intoxicated, and aggressive persons “usually calm down a bit by the time they have got back [to the station] and then you give it [their rights] to them” (T117).
The issues
The legal issues which here arose related to whether incriminating statements which the accused made about this alleged offence during conversations with Mr Wilson were made voluntarily and, if so, whether the evidence of what she said should be excluded as having been unlawfully, improperly or unfairly obtained or as being contrary to public policy. Gratitude is expressed to both counsel for the thoroughness of their preparation and presentation and for the numerous (if not innumerable) reported cases to which reference was made. Time does not here permit (nor the situation require) an exegesis upon these issues. I have read and considered everything that has been presented and shall endeavour concisely to express my views and conclusions on the issues which arose.
The findings
Upon the issue of voluntariness, on viewing the compact video cassette (exhibit VDP2) which recorded those conversations between Mr Wilson and the accused before she was taken to the MBPS, initially I was concerned at her palpable distress, for whatever reason that distress was evident. However, by the time that they had moved to her bedroom and incriminating statements were there made by the accused about this alleged offence, her distress was no longer manifest. In my view, there was nothing in the evidence to suggest that her incriminating responses there given may not have been voluntarily made in the exercise of her free choice to speak or be silent (MacPherson v R (1981) 147 CLR 512). I accept that, “it is most undesirable to seek to elicit evidence from a person whose condition is such that she may not be able to exercise that degree of clarity of mind in interacting with the police” which might otherwise have existed. However, there was no evidence that the accused’s physical and or mental condition was such that she may have been overborne by exhaustion or distortion of mind to the extent that her incriminating statements (both in her bedroom and, subsequently, at the MBPS) may not have been voluntary (see Olsson J. in R v Lawford and Van De Wiel, reasons for ruling delivered on 17 June 1991, referring to the judgment of Hardie Boys J in R v Williams [1959] NZLR 502).
Section 79A(3)(a) of the Act requires that a police officer “must, as soon as is reasonably practicable after the apprehension of a person” inform that person of his or her rights under section 79A(1) (the “Rights upon arrest”). As Perry J remarked in the Court of Criminal Appeal in R v Rankine (reasons for decision delivered on 18 June 1993 – Judgment No. S3990.3), that expression “should not be given a meaning which overrides the ordinary dictates of common sense and fairness.” There may be circumstances in which the person should be given an opportunity to settle down after the process of arrest has been completed and consider his position. Depending on the person’s condition, it may be appropriate to defer informing him of his rights until his condition is such “as to demonstrate a likelihood that he understands the significance of what might be said to him” (Perry J in Rankine’s case (supra), at page 3). (That approach was adopted by me in R v Smith (1999) 205 LSJS 427 in relation to a person who was aggressive and abusive.)
In Robinett v Police [2000] 78 SASR 85, at 94, Bleby J said that while the remarks of Perry J in Rankine’s case (supra) were “no doubt appropriate in that case, they merely illustrate that what is reasonably practicable will depend very much on the circumstances.” His Honour continued (at 94-95):
“In most cases, delay in the administration of rights to arrested persons should be contemplated only in unusual circumstances .... A preferable course in circumstances such as the present case [where the person was too intoxicated and distressed to have been able adequately to comprehend the effect of those rights] might be for the intoxicated suspect to be advised of his or her rights at or shortly after the time of arrest, even if doubts are entertained about the suspect’s sobriety and comprehension, and for the rights to be administered again, as a precaution, once it is beyond doubt that the suspect has sobered-up and will fully understand the rights. In that way, the risk of volunteering ill-advised statements is minimised from the outset.”
(My emphasis.)
In my view, that is what should have here occurred because of the accused’s initial distress. Unfortunately, although at the MBPS (when the accused had calmed down) Mr Wilson purported (in Q27) to “go through” her rights again, “just so that you know them”, as previously observed (in paragraph 9, above) that did not happen. Indeed, it could not be said that he then paid even “lip service” to the requirements of section 79A(3)(a) (see Matheson J in R v Williamson (No. 2) [1997] 69 SASR 486, at 492).
Section 74D of the Act provides that a police officer who proposes to interview a suspected person “must ensure” that the requirements of that section are complied with, including, if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview (section 74D(1)(a)). “Interview” is defined (in section 74C) as including a conversation, part of a conversation or a series of conversations. A “conversation” (which is not defined in the Act) is an informal interchange of thoughts by spoken words; a talk or colloquy (The Macquarie Dictionary (1981), at 412).
Mr Wilson sensibly conceded in evidence (T41) that his remark in Q27 at the accused’s house that morning, “When we get back [to MBPS] we’ll get you to talk to a solicitor, OK”, did read as if he were holding out to her that, because of her uncertainty about which way to turn, he would get her to talk to a solicitor (even if, by that remark, he meant that he would give her the opportunity to speak with a solicitor - if she wanted to do so). After returning to the MBPS, that matter was not pursued because, in Mr Wilson’s evidence, the accused there told him that she wanted to have her friend present at the formal interview which was then proposed. Upon the evidence, I am satisfied that Mr Wilson and the accused did have a conversation at the MBPS about who should be present at the proposed formal interview. That conversation, in my view, was an “interview” for the purposes of section 74D, giving to that word a broad meaning in light of the mischief being addressed by sections 74C to 74E (cf Gray J in R v Karger [2002] SASC 294). Clearly that was an important conversation for both of them, particularly in view of what Mr Wilson had previously ‘held out’ to the accused in Q27. The conversation could and should have then been recorded on videotape, as provided in section 74D(1)(a). That was not done.
Section 74E(1) of the Act provides that, in proceedings for an indictable offence, evidence of an interview between a police officer and the accused is inadmissible against the accused unless the officer complies with sections 74C to 74G or the court is satisfied that “the interests of justice require the admission of the evidence” despite the officer’s non-compliance. As I observed in R v Smith (supra, at 435),
“That the requirement of police compliance with the statutory provisions in section 74D for recording interviews with suspects is strict and departures from that requirement should not lightly be condoned was acknowledged by Cox J in R v King and Pitson No. 2) (1998) 199 LSJS 111, at 118 and subsequently by [other judges – see references there given]. As Cox J observed in King and Pitson’s case (supra), at 115:
“the courts and the public at large are entitled to expect that the police will comply strictly with statutory safeguards for suspected persons. It is very important that the police do not take a casual attitude to the statutory provisions and, most important, that they do not become casual about statutory provisions, taking a chance on the evidence being excluded.”
Under these statutory provisions, “exclusion is to be the normal result of non-compliance unless the court can find reason to do otherwise” (Cox J in King and Pitson’s case (supra), at 119).”
The interpretation of section 74E has since been considered by the Court of Criminal Appeal in at least five cases: R v Byster (2001) 80 SASR 373; R v Day [2002] SASC 95; R v Blaney and Blaney [2002] SASC 192; R v Karger [2002] SASC 294; and R v Tripodi [2002] SASC 420. As Doyle CJ said in Tripodi’s case (supra), the expression “the interests of justice” should be read as embracing a wide range of factors. Ms Abbey submitted that the following factors are here relevant:
· the nature of the non-compliance was innocent and inadvertent;
· the non-compliance did not affect the cogency of the evidence of the formal interview which followed;
· the formal interview was recorded accurately;
· the evidence of the formal interview was probative of the accused’s guilt;
· the self-incriminatory evidence in the formal interview was obtained voluntarily; and
· there was no unfairness or prejudice to the accused.
Accepting the variable force of those factors, it should also be borne in mind that fundamental to the admissibility of evidence of the proposed interview was the need to establish that the accused did not want to avail herself of the right to have a solicitor present (and, one may add, the opportunity thereby to seek and obtain legal advice) during that interview, particularly in view of the previously video-recorded remark of Mr Wilson in Q27 at the accused’s house, whereby he had ‘held out’ to her that he would ‘let her talk to a solicitor’ when they arrived at the MBPS, if she desired.
In Kelly v The Queen [2004] HCA 12 (reasons for decision delivered on 10 March 2004), when addressing “The problem of confessions to the police”, Gleeson CJ, Hayne and Heydon JJ referred to the real advantages to be generated, despite financial cost, by the electronic recording of police interviews:
“It would be useful in providing a means of establishing exactly what was said; in proving that requirements for cautioning and other formalities had been complied with; in narrowing the time within which it could be alleged that threats had been made; in helping to estimate the fairness and propriety of the questioning; and in helping to evaluate, by assessment of the demeanour and manner of the interviewee in responding, the reliability of what was said.”
Those advantages found expression, in this State, in sections 74C to 74G of the Act. In this case, in my view, strict compliance with the statutory safeguards for suspected persons was fundamental and to excuse this non-compliance would not be in “the interests of justice”. As Perry J said in Day’s case (supra), para 22,
“It is not open for the prosecution to tender part of a series of conversations, that part having been recorded in accordance with the requirements of s74D, and to ignore another part of the series of conversations which, in breach of s74D, has not been properly recorded.”
Upon the issue of fairness, which relates to the right of the accused to a fair trial (R v Swaffield (1998) 192 CLR 159, at 189), the question is not whether the police acted unfairly but whether it would be unfair to the accused to use her statements against her (Van der Meer v The Queen (1988) 62 ALJR 656, at 666). In view of the remark that Mr Wilson made (in Q27) to the accused in her house, I consider that it would be unfair to the accused to adduce in evidence what she then said to Mr Wilson in her bedroom about this alleged offence in response to the questions that he asked after the caution given in the sixth question of that conversation. For that reason, also, I consider that it would be unfair to the accused to adduce in evidence what she said about this alleged offence in the formal record of interview, the provisions of section 74D not having been complied with in respect of the previously unrecorded conversation between them about who was to be present at that interview. I also consider that it would be unfair to the accused to adduce that evidence because her rights were not again given to her after she had calmed down and before that interview.
Were it to be necessary, I would also exclude the proposed evidence as being contrary to considerations of public policy. In weighing the competing public requirements referred to by Barwick CJ in R v Ireland (1970) 126 CLR 321, at 334-335, were a conviction to be here secured upon what I regard as unlawful and unfair acts, it would, in my view, have been obtained at “too high a price”.
For these reasons, the evidence of what the accused said to Mr Wilson during conversations about this alleged offence will be excluded, except for her responses to the first six questions in her bedroom.
I so rule.
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