R v Schubert No. DCCRM-03-299 - [2004] SADC 53

R V SCHUBERT
[2004] SADC 53
Judge 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Schubert No. DCCRM-03-299

Details

AGLC: R v Schubert No. DCCRM-03-299 [2004] SADC 53
Case: [2004] SADC 53
Decision Date: 25 March 2004

CaseChat Overview and Summary

The accused, Tania Louise Schubert, was charged with possessing methylamphetamine for supply on 30 December 2002 at Murray Bridge, in contravention of section 32(1)(e) of the Controlled Substances Act, 1984. Schubert pleaded not guilty, and the court conducted a voir dire to determine the admissibility of evidence the Crown intended to present at trial. The key legal issues revolved around the voluntariness of Schubert’s statements and whether the evidence was obtained lawfully, properly, and fairly, or if it contravened public policy. The court found that while Schubert’s initial distress might have affected her ability to comprehend her rights, her later statements were voluntary. However, the court ruled that the evidence should be excluded because the police failed to comply with statutory requirements for recording interviews, which is fundamental to ensuring the admissibility of such evidence. The failure to record a critical conversation about who would be present during the formal interview, particularly after the police officer had suggested that Schubert could speak to a solicitor, rendered the evidence unfair and contrary to public policy. The court therefore excluded the incriminating statements made by Schubert during the unrecorded conversation and the formal interview, except for her responses to the first six questions asked in her bedroom.

Orders