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R v Smith No. DCCRM-03-250

R v Smith No. DCCRM-03-250

Case [2003] SADC 107 29 July 2003

Admissibility of Evidence

Voluntariness of Confession

Police Compliance with Statutory Requirements

Intoxication

Oppressive and Unfair Procedure

Criminal Law

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R v Scott Andrew Smith
[2003] SADC 107
Judge Lee
Ruling

These are reasons for a ruling which I gave on the voir dire in this matter.
The accused was charged with the offences of unlawful wounding, assault occasioning actual bodily harm and wounding with intent to do grievous bodily harm at Athol Park on 28 September 2002.
By Rule 9 notice, the accused sought to exclude prosecution evidence of a conversation, two volunteered comments, and a video-taped interview, following the attendance of police officers at premises occupied by the accused at Athol Park.
The conversation took place at the front fence of the premises from 4:17pm. According to his handwritten notes, Detective Clark informed the accused of his arrest and of his rights upon arrest. At each stage of this procedure, the accused was asked whether he understood what was being put to him. He gave some responsive answers, but also denied that he had stabbed anyone.
The first comment was made in a police car on the way to the Port Adelaide Police Station shortly after 4:36pm. According to Detective Clark’s notes, the accused volunteered the comment “I haven’t done anything. I haven’t touched any young girls or anything.”
The second comment was made in a stairwell at the police station on the way to a video interview room at 4:50pm. According to his notes, Detective Clark said “This way, mate, up the stairs, into this room and sit down here”, following which the accused volunteered the comment “No wonder he fucking gets what he got, I tried being good, but fucking hell, hm.”
The conversation and the comments were not recorded by Detective Clark otherwise than in his notebook. The interview at the police station was video-taped in the video interview room from 5:02pm. At the beginning of the interview, and before he questioned the accused about the events at Athol Park, Detective Clark gave the accused his rights including his right to silence, removed the accused’s handcuffs, took and replaced the accused’s clothing, asked the accused for his date of birth and home address, and read back to the accused his notes of the conversation and the comments.
At the time of the conversation at the house, according to Detective Clark’s notes, the accused asked twice for permission to go to the toilet. The accused’s evidence is that he made numerous requests to go to the toilet at that time, that his pants were wet when he handed them over in the interview room, and that, although he had no memory of urinating, he assumed that he did so after falling asleep in the police car on the way to the police station. Whether or not that evidence is true, later on in the interview at the police station he again asked to use the toilet, and again his request was refused. In evidence before me, Detective Clark explained that he did not want the accused to wash his hands before a forensic procedure had been…

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 Smith No. DCCRM-03-250

Details

AGLC: R v Smith No. DCCRM-03-250 [2003] SADC 107
Case: [2003] SADC 107
Decision Date: 29 July 2003

CaseChat Overview and Summary

The case R v Smith No. DCCRM-03-250 involved Scott Andrew Smith who was charged with unlawful wounding, assault occasioning actual bodily harm, and wounding with intent to do grievous bodily harm. The incident took place at Athol Park on 28 September 2002. The accused sought to exclude certain pieces of prosecution evidence, including a conversation at the front fence of his premises, two volunteered comments, and a video-taped interview at the police station, on the grounds that they were obtained in breach of statutory requirements for recording interviews with suspects. The legal issues centered on whether the conversation, comments, and interview constituted a "series of conversations" and whether the failure to record them in compliance with statutory requirements could be excused under the interests of justice. The court had to determine if the statutory requirements were breached and, if so, whether the interests of justice required the admission of the evidence.

The court ruled that the failure to record the conversation and comments on video or audio-tape amounted to a breach of the statutory requirements. The court found that it was reasonably practicable to record the conversation and comments, given the available resources, but the investigating officer did not make reasonable attempts to do so. The court further determined that the conversation, comments, and the subsequent interview at the police station constituted a "series of conversations" as they occurred within a short timeframe, involved the same people, and related to the same topic. Therefore, the entire series must be treated as a single interview, and the failure to comply with statutory requirements for any part of the series meant that all parts should be excluded. The court also concluded that the interests of justice did not require the admission of the evidence due to the investigating officer’s non-compliance with the statutory provisions. Additionally, the court found that the interview at the police station was not voluntary due to the accused's substantial intoxication and the officer's refusal to allow him to use the toilet, leading to the exclusion of the interview.

As a result of the court's ruling, the conversation at the house, the comments made in the car and stairwell, and the video-taped interview at the police station were excluded from the prosecution's case at the trial.

Orders