R v Smith (No 2) - [2019] SADC 63

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SMITH (No 2)
Criminal Trial by Judge Alone
[2019] SADC 63
Reasons for Ruling of Her Honour Judge S David
22 May 2019
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW - DISCRETION TO EXCLUDE
Application by accused to exclude record of interview – whether non-compliance with s 79A of the Summary Offences Act – accused asked to speak with his solicitor – police continued asking the accused questions without facilitating the accused's request – accused only cautioned of his right not to answer questions at end of interview – record of interview excluded for unfairness.
Criminal Law Consolidation Act 1935 (SA) s 48; Summary Offences Act 1953 (SA) s 79A, referred to.
R v Andrews & Ors [2005] SASC 15; R v Wilson and Others (1987) 47 SASR 287; R v Partington [2018] SASCFC 113; R v Bascombe and Anor [2015] SASC 129, considered.

R v SMITH (No 2)
[2019] SADC 63

Brett James Smith (‘the accused’) is charged with the offence of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). The particulars of the offence are that the accused, between 1 February 2013 and 31 March 2013, at Mile End, engaged in sexual intercourse with CE, by inserting his penis into her vagina without her consent, knowing or being recklessly indifferent to the fact that she was not so consenting.
Counsel for the accused applied to exclude a record of interview conducted by Detective Weston with the applicant on 10 October 2016 at Mount Gambier Prison, and later at the Mount Gambier Police Station. The basis for the application being that the interviewing officers continued to ask the accused questions after he had requested to speak with a solicitor, and without facilitating that request. Further, the accused was not advised of his right not to answer questions until the conclusion of the interview. I granted the application and excluded the record of interview for unfairness. I now provide reasons for that ruling.
By way of background the accused was alleged to have attended a massage parlour, the Purple Sofa, and engaged CE as a masseuse in early 2013. The accused was alleged to have raped CE during that massage. CE first complained of the alleged rape in mid to late 2013. The matter was first reported to police over two years later on 10 September 2015. Detective Weston and Detective Davis attended at Mount Gambier Prison on 10 October 2016 and interviewed the accused. That interview was recorded. A copy of the tape recorded interview was tendered to the court[1], as was a transcript of the interview[2].
[1]    VDD1.
[2]    VDD2.
At the commencement of the interview, Detective Weston advised the accused that he was going to be arrested for three counts of indecent assault and one count of rape relating to CE alleged to have occurred in February 2013. Detective Weston told the accused that she was not going to ask him any questions right now, and gave the accused his arrest rights in the following terms:
14.WESTON:   I’m just going to give you your Arrest Rights. So as an arrested person you’re entitled to several Rights.
15.SMITH:     Yep.
16.WESTON:   Okay you’re entitled to make in the presence of a member of the Police Force one telephone call.
17.SMITH:     Yep.
18.WESTON:   To a nominated relative or friend to inform that person of your whereabouts. Do you understand that?
19.SMITH:     Yep, yep.
20.WESTON:   Yep do you wish to make a telephone call when we get back to Mount Gambier?
21.SMITH:     Yep, yep.
22.WESTON:   Yep. Who’s that to?
23.SMITH:     Probably to my lawyer.
24.WESTON:   Your lawyer yep.
25.SMITH:     Yep.
26.WESTON:   Okay that goes into the next one you’re entitled to have a solicitor.
27.SMITH:     Yep.
28.WESTON:   A relative or a friend present. ……
29.SMITH:     Um I’m just curious of who is [CE]?
30.WESTON:   Just bear with me mate.
31.SMITH:     Yep. …..
32.WESTON:   I’ve got to go through these okay.
33.SMITH:     Yeah you’re right, you’re right.
34.WESTON:         You’re entitled to have a solicitor, relative or friend present during any interrogation or investigation while in custody.
35.SMITH:     Yep.
36.WESTON:   Do you understand that?
37.SMITH:     Yep.
38.WESTON:   Do you want to have anyone present when I speak to you about this matter?
39.SMITH:     Oh well it’s a bit hard to isn’t it I’m like in prison so how can I get my lawyer from?
40.WESTON:   We, we’re going to go to Mount Gambier so you can certainly make contact with them.
41.SMITH:     Yep.
42.WESTON:   Is that what you want to do?
43.SMITH:     Yeah I want to call my lawyer.
44.WESTON:   Yep.
45.SMITH:     Because I yeah, I yeah.
46.WESTON:   Who is your lawyer?
47.SMITH:     Ah John Mattner.
48.WESTON:   John.
49.SMITH:     Mattner.
50.WESTON:         M A T T N E R?
51.SMITH:     Yep.
52.WESTON:   Do you know what chambers he’s from or?
53.SMITH:     Oh he’s works, he’s a Barrister Solicitor he works for himself.
54.WESTON:   Okay no worries. If English is not your native language you’re entitled to an interpreter to assist you. Do you understand that?
55.SMITH:     Yep, yep.
56.WESTON:   Okay. Once we’ve gone ah, I warn you that anything you do say will be recorded and maybe used in evidence. Do you understand that?
57.SMITH:     Yep.
58.WESTON:   Yep now once we go back to Mount Gambier Police Station you’re entitled to apply to the Office in Charge for release on Bail.
59.SMITH:     Yep, yep.
60.WESTON:   Do you understand all that?
61.SMITH:     Yep.
62.WESTON:   Yep okay. I can explain a bit more about these allegations but I’m a bit loathe to do that when you want to speak to John so what I suggest is we.
63.SMITH:     No I’m, I’d like to, I, I, I’d like to get the, as much information from you first so that I’ve at least got something to, to talk to him about cos I have no idea. February 2013 was I actually out of prison at the time?
64.WESTON:   Yes.
65.SMITH:     Where was I living?
66.WESTON:   Ah I’m not a hundred percent sure on that.
67.SMITH:     And where did this current ah alleged happen?
68.WESTON:   So what’s happened, what the allegations are Brett is that you attended a Massage Parlour called the Purple Sofa on South Road at MILE END. Do you know?
69.SMITH:     I’ve never even heard of it.
70.WESTON:   Okay and that’s fine. Look I, I’m a bit funny about asking you questions if you want a lawyer.
71.SMITH:     Yeah no I’m look I’m.
72.WESTON:   Are you happy to talk to me without this lawyer.
73.SMITH:     Yeah I’m very happy, I’m very happy to talk to you because I don’t know who you’re talking about.
74.WESTON:   Okay.
75.SMITH:     I don’t know anything.
76.WESTON:   Yep.
77.SMITH:     Um I’ve never heard of [CE], I’ve never heard.
78.WESTON:   ……..
79.SMITH:     I’ve never heard of the Purple Sofa.
80.WESTON:   Right.
81.SMITH:     Um so I don’t understand like why now in it’s 2016 why it’s taken such a long period of time for this to happen when I’ve been in an out of custody like a couple of times.
82.WESTON:   Yeah, yep.
83.SMITH:     Out, out of the blue I’m being charged with rape and three counts of indecent assault.
84.WESTON:   Yep.
85.SMITH:     And why has it taken three and a half years for this to happen?
86.WESTON:   Yep look like I said I can answer a lot of those questions look so long as it’s ab, you’re absolutely sure that you’re happy to speak to me without a lawyer
87.SMITH:     I’m a hundred percent sure to speak to you.
88.WESTON:   A hundred percent sure.
89.SMITH:     Yeah.
During the interview the accused was transported to the Mount Gambier Police Station. It was not until he was at the police station, and after much of the interview had been conducted, that the interviewing police officers contacted the accused’s solicitor, and cautioned the accused in the following terms:
500.   WESTON:   So what we’ll do mate we’ll call.
501.   DAVIS:     Leave it with me and I’ll see if I get the phone number for you.
502.WESTON:   John and let you have a talk about it cos you appreciate you don’t have to speak to us at all.
503.SMITH:     I know that and.
504.WESTON:   And you know you don’t have to answer any questions.
505.SMITH:     I know that but as I said to you just you know a short time.
506.WESTON:   Yep.
507.SMITH:     When I’ve done something wrong.
508.WESTON:   Yep.
509.SMITH:     You have a look at my history I’ve always manned up, I’ve admitted it.
510.WESTON:   Yep.
…
558.WESTON:   Yep and there are allegations that I haven’t got that far and again you know you don’t have to say anything to me.
559.SMITH:     Yep.
560.WESTON:   You don’t have to answer any questions and if you wanted to speak to a lawyer.
561.SMITH:     I’ll just quickly speak to him.
562.WESTON:   Yeah.
563.SMITH:     Yeah I’ll just quickly speak to him and then get all the process so I can get back to Mount Gambier Prison.
564.WESTON:   Yeah. Yeah.
565.SMITH:     Because I, I’m not dealing with this at all.
The accused then spoke with his solicitor and said:
580.SMITH: Um I spoke to my lawyer, I’ve told you everything that um so far on camera, I’ve answered your questions, I’ve told you my part so that, that’s all the questions I’ll be answering now.
On the prosecution case, the statements made by the accused in his record of interview, that he had never used the name ‘Josiah’ when booking appointments with a masseuse or sex worker, and that he had never heard of the massage parlour the Purple Sofa, were lies and relevant to his credibility.
On the voir dire, counsel for the accused argued that the interview should be excluded for unfairness as there had been non-compliance with s 79A of the Summary Offences Act 1953 (SA). More specifically, the police officers continued to interview the accused after he had expressed a wish to speak with his solicitor, and before advising him of his right to refrain from answering questions. As to the fact that the accused himself had pressed police to hear the nature of allegations, counsel submitted that Detective Weston has conflated this request with the accused agreeing to answer questions in the absence of speaking with, or having present, a solicitor. It is submitted that the interviewing officers should have stopped the interview until after the accused had spoken with his nominated solicitor; or in the alternative, the allegations should have been put to the accused without being interspersed with questions pertinent to the allegations.
Counsel for the accused relied on the authority of R v Andrews & Ors [2005] SASC 15 at [58]:
It is implicit in s 79A that a reasonable opportunity must be afforded to an arrested person to exercise the rights being recited to him. If that were not so, the rights provided by s 79A would be rendered nugatory. When an arrested person expresses a wish to have a solicitor, relative or friend present while being questioned by police officers, the interviewing officer should take reasonable steps to enable the arrested person to exercise that right. That obligation is the greater if the arrested person has on a former occasion and in relation to the same matter expressed a desire to have a solicitor present and has acted on advice given by that solicitor. The officer is not discharged from that obligation by the arrested person not promptly identifying who that person should be.
Counsel for the accused also relied on the authority of R v Wilson and Others (1987) 47 SASR 287 at 296 for the proposition that police officers should not continue to question a person who has asked to see a solicitor and that it is unlawful to do so.
The prosecutor submitted that in light of the accused’s criminal history, he was aware of his right not to answer any questions, and argued that it is apparent from the interview that the accused was aware he was able to terminate the interview at any time. Further, the prosecutor submitted that the accused indicated his willingness to participate in the interview by continuing to ask questions of, and answer questions from, the investigating officer after he was told of his right to have a solicitor present for the interview.
The prosecutor relied on the authority of R v Partington [2018] SASCFC 113. In the case of Partington, the appellant was charged with the offence of rape. Police attended at the appellant’s home; arrested him and told him of his rights pursuant to s 79A of the Summary Offences Act. The appellant was taken to the City Watch House and placed in a holding cell. The appellant requested that the police contact the after-hours number of Legal Aid, which they did. The appellant spoke to a solicitor privately for no more than 5 minutes. Police then interviewed the accused. The accused’s rights were reiterated and the accused interrupted and the following exchange occurred:
AppellantYou said that, they said they weren’t coming, that’s what they, they said.
ScothernOkay. So yeah, just for the purpose of the tape, we facilitated that right for you to speak to a Solicitor, okay and you’ve spoke to a Solicitor. Is that correct.
AppellantAh, yeah.
ScothernSo you’ve had legal representation.
AppellantYeah the free legal advice yeah, they, I don’t know why they won’t come in but they just said they won’t come in.
ScothernOkay but you’ve had legal representation.
AppellantRight.
ScothernSo you’re happy with that. Okay, I’m going to ask you some further questions. Again you’re not obliged to answer any of those questions but anything you say may be given in evidence. Do you understand that.
AppellantYep, sure.
In the case of Partington, the appellant argued that the police had implied to the appellant that he had exhausted his rights by saying ‘so you’ve had legal representation’, and in failing to ask whether he wished to contact another solicitor to attend for the interview.
Vanstone J (with whom Lovell and Hinton JJ agreed) said that the real question was whether, having been told by the appellant that Legal Aid would not be attending, the police officer should have done more to explore the appellant’s state of mind regarding having another solicitor attend. Her Honour found that on the unchallenged evidence of the police, and a viewing of the interview, the police had done what the appellant had asked of them, namely to contact the legal aid solicitor, and the appellant had made no further request to speak to anyone else or proceed differently. Her Honour specifically noted that the appellant was cautioned for the last time immediately before the questioning turned to the allegations.
The contrast between the factual circumstances of Partington and the matter before this court is immediately apparent. Here, the accused was never afforded the opportunity to speak with a solicitor at all, despite his request to do so. Further, questioning by the police continued before the accused was cautioned with Detective Weston asking the accused questions about the alleged offending.
I was also referred to the authority of R v Bascombe and Anor [2015] SASC 129 at [16]. The accused (Spillios) in that case was arrested at his home address at Berri. He was arrested for murder, and shortly after being placed under arrest, the accused said (at p 4 of the interview transcript):
What are you talking about, I gonna ring the lawyer what.
The investigating officers continued to question the accused without in any way addressing his reference to a lawyer, nor attempting to facilitate him speaking with a lawyer, or having a lawyer present during the interview. Later in the interview (at p 17 of the interview transcript) the accused stated:
Mate a 150%, I’ll ring Harry Patsouris now my lawyer all right, 150%, I have not done anything that he has said, okay.
Peek J, the trial judge, declined to exclude the interview (as recorded from pp 4 to 17) on the basis that the accused was initially communicating an indication that he knew of his right to have a lawyer present, and was in the process of considering whether he would exercise that right, but had not yet determined that he would do so. Peek J excluded the interview from pp 17 onwards, on the basis that the accused had made a firm statement that he wished to speak with his solicitor, and the police officers ignored that request and persisted in asking the accused further questions about the allegations.
In this case, there is nothing ambiguous about the accused’s request to speak to a solicitor, the accused having made that request on two occasions, and having named his solicitor. There is nothing on the face of the interview, or in the material before the court, to suggest that the accused was still considering whether to exercise his right to speak with a lawyer, or have a lawyer present at the interview.
The prosecution also submitted that the accused was aware of his rights to have a solicitor present, and aware of his right not to answer questions, and made an informed decision to continue answering questions anyway, despite his earlier requests to speak with his solicitor: The prosecution relied on the following part of the interview:
63.SMITH:     No I’m, I’d like to, I, I, I’d like to get the, as much information from you first so that I’ve at least got something to, to talk to him about cost I have no idea. February 2013 was I actually out of prison at the time?
64.WESTON:   Yes.
65.SMITH:     Where was I living?
66.WESTON:   Ah I’m not a hundred percent sure on that.
67.SMITH:     And where did this current ah alleged happen?
68.WESTON:   So what’s happened, what the allegations are Brett is that you attended a Massage Parlour called the Purple Sofa on South Road at MILE END. Do you know?
69.SMITH:     I’ve never even heard of it.
70.WESTON:   Okay and that’s fine. Look I, I’m a bit funny about asking you questions if you want a lawyer.
71.SMITH:     Yeah no I’m look I’m.
72.WESTON:   Are you happy to talk to me without this lawyer?
73.SMITH:     Yeah I’m very happy, I’m very happy to talk to you because I don’t know who you’re talking about.
74.WESTON:   Okay.
75.SMITH:     I don’t know anything.
The difficulty with that submission is that the accused said that he was content to continue talking with the police, not that he was content to answer their questions, and his response was given in the context of his expressed wish to know the detail of the allegations, the incident having occurred about 3 years earlier. Further, there was no urgency for the police to put the allegations to the accused, and nothing to preclude the police from having stopped the interview, having contacted the accused’s solicitor and after the accused had been afforded an opportunity to speak with his solicitor, having clarified with the accused how he wished to proceed, in particular whether he wished to be interviewed by police, or simply have his solicitor (or the accused) advised of the nature of the allegations.

I am satisfied that the accused on more than one occasion expressed a desire to speak with his solicitor before answering any further questions (not withstanding his wish to be informed of the allegations). I am further satisfied that the accused was not advised of his right to refrain from answering questions until after he had made statements against his interest. In those circumstances, the interviewing police breached s 79A of the Summary Offences Act in continuing to interview the accused after he had requested to speak with his solicitor, and in failing to caution the accused until late in the interview.
Whilst there is no suggestion of any male fides on the part of the police, or that they failed to comply with their obligations for a forensic advantage, their breaches of s 79A of the Summary Offences Act were significant and I am persuaded the interview should be excluded in the exercise of the court’s discretion for unfairness, and I so rule.