R v Smith No. DCCRM-03-250

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 conducted in the hope of obtaining evidence relevant to the investigation.
To the extent that is relevant to these proceedings, the Summary Offences Act 1953 provides:
“74C   In this Division (sections 74C to 74G)-
interview includes-
(a)a conversation; or
(b)part of a conversation; or
(c)a series of conversations;
….
74D    (1) An investigating officer who suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:
(a)     if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;
(b)    if it is not reasonably practicable to record the interview on videotape but it is reasonably practicable to record the interview on audiotape, an audiotape recording of the interview must be made;
(c)    if it is neither reasonably practicable to record the interview on videotape nor reasonably practicable to record the interview on audiotape-
(i)a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and
(ii)as soon as practicable after the interview, the record must be read aloud to the suspect and the reading must be recorded on videotape; and
(iii)when the videotape recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and
(iv)if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and
(v)at the end of the reading, but while the videotape recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and
(vi)if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the error or omission asserted by the suspect in an addendum to the record of interview.
….
(3) In deciding whether it is reasonably practicable to make a videotape or audiotape recording of an interview, the following matters must be considered:
(a)     the availability of recording equipment within the period for which it would be lawful to detain the person being interviewed;
(b)    mechanical failure of recording equipment;
(c)    a refusal of the interviewee to allow the interview to be recorded on videotape or audiotape;
(d)    any other relevant matter.
….
74E     (1) In proceedings for an indictable offence, evidence of an interview between an investigating officer and the defendant is inadmissible against the defendant unless-
(a)     the investigating officer complied with this Division; or
(b)    the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer’s non-compliance.
….
74G    This Division does not-
(a)     make evidence admissible that would otherwise be inadmissible; or
(b)    affect the court’s discretion to exclude evidence.”
The legislative policy behind these provisions was considered in R v Day (2002) 82 SASR 85. After citing passages from the judgments of the High Court in McKinney v The Queen (1991) 171 CLR 468, Gray J, with the concurrence of the other members of the Court, said at page 93 (para 50):
“The advantages of video-recording systems are obvious. They are accurate and provide a total recording of the event enabling a jury to assess the real merits of the evidence. The amending legislation sought to balance two conflicting interests – the thorough and efficient investigation of crime by police which often leads to the questioning of suspects and the police’s duty to treat suspects fairly. The legislation recognised that the technology existed and was relatively inexpensive, simple to operate, portable, reliable and secure. The electronic recording of police interviews was seen as the single most reliable form of corroboration. It protects the suspect from any abuse of police powers and it protects the police from unjustified allegations by suspects.”
Given the mischief addressed by the provisions, the word “interview” in s.74D(1) should be accorded a broad interpretation. In R v Karger (2002) 83 SASR 135 at 165 to 166, Gray J said (paras 114 to 115):
“Counsel for the Crown was unable to identify any criteria by which an assessment could be made of whether the intended conversation was a proposal to interview. Counsel said that it was a question of fact, circumstance and degree. There was no guiding criterion. It was said that if Parliament had intended the provisions to apply to every conversation between an investigating officer and a suspect then it would have said so. It was contended that the provisions could not have been intended to apply to all words spoken between an investigating officer and a suspect and that the meaning of “interview” must necessarily be restricted.
There is no reason in principle why the legislative provisions should not have a broad application or why “interview” as used in s 74D(1) should be accorded a restricted meaning. A broad interpretation of the definition of interview does not appear to be contrary to the legislative intention. Having regard to the mischief being addressed by ss 74C-74E there is every reason to give a broad interpretation to the legislative scheme. In the event that recording equipment is not available the obligation of the investigating officer is to make a written record as soon as practicable of the conversation. There is no requirement for a verbatim record. On the ensuing videotape recorded interview the written record must be read to the suspect who then has the opportunity to point out any error or omission. Such a procedure is not unduly burdensome. It is directed towards meeting the concerns of the court in McKinney v The Queen. The submission that the meaning of “interview” should necessarily be restricted must be rejected.”
The only judicial consideration of the meaning of “conversation” in s.74C, as far as I am aware, is that of Judge Lunn in R v Nayda (1999) 203 LSJS 465. At pages 471 to 472, his Honour said:
““Interview” is defined in s74C to include a conversation. This considerably broadens what would otherwise be the meaning of “interview” and extends it well beyond a formal interrogation. It encompasses an investigating officer who proposes to have any conversation with the suspect. I can find no judicial exposition of “conversation”. The Macquarie Dictionary, 2^nd revised ed, p406 defines it as an “informal interchange of thoughts by spoken word; a talk or colloquy”. It encompasses any verbal dialogue between two people where each is seeking to communicate with the other. It does not always extend to where one person merely makes a gratuitous unsolicited comment to another, but if the recipient of such a comment responds to it and pursues a dialogue in consequence of it, the comment then becomes part of a conversation.”
I acknowledge that, according to its dictionary meaning, “conversation” signifies a dialogue between two or more people. Nevertheless, given that the potential for mischief lies as much with unsolicited comments as with solicited comments, the legislature could scarcely have intended, in my opinion, that the protection of the Act would be denied to an unsolicited comment, merely because the recipient chose not to respond. I consider that the word “conversation” is open to a wider construction, and that a wider construction is the construction that would better promote the purpose or object of the Act: s.22 of the Acts Interpretation Act 1915 and Mills v Meeking (1990) 169 CLR 214 per Dawson J at 235. Although the comments in the car and the stairwell were not associated with a proposal to interview, as conversations they would fall within the expression “a series of conversations” if they were linked to the conversation at the house in some relevant way. I will return to this point later in these reasons.
It is common ground that, at all relevant times, Detective Clark, as the investigating officer, had reasonable grounds to suspect the accused of having committed an indictable offence. Nevertheless, counsel for the accused contended that Detective Clark’s failure to record the conversation and the comments on video or audio-tape, in accordance with the first and second options specified in s.74D, amounted to a breach of that section. Counsel contended that, in the event of a finding of non-compliance, I should not be satisfied that the interests of justice require the admission of the conversation and the comments under s.74E(1)(b). Counsel contended that the conversation, the comments and the interview at the police station together amount to a “series of conversations” and that, in the event of a finding of non-compliance with respect to any one of them, all should be excluded. Counsel contended that the interview should be excluded, either as having been given involuntarily, or in exercise of discretion.
With respect to the conversation at the house, Detective Clark’s evidence was to the effect that there was an audio-recorder in his patrol car, but he did not record the conversation because there was no audio-tape available. He asked one uniformed officer for a tape, but made no enquiry of any other police officer at the scene, despite the fact that seven police officers, and two patrol cars at least apart from his own, were in attendance.
In my view, Constable Clark’s attempts to locate a tape fell well short of what was reasonable in the circumstances. The prosecution has not established, in terms of s.74D(1)(b), that it was not “reasonably practicable to record the interview on audio-tape”.
As for the interview at the police station, the accused’s evidence was that, earlier in the day, he had consumed homemade Grappa and cannabis over a number of hours. Consistent with that evidence, the video-tape of the interview shows that the accused was substantially intoxicated. His speech was slurred, rambling and verbose, with body language to match.
As Detective Clark attempted to caution the accused, the accused asked, as I interpret his colourful language, whether he could take action against the police for bringing a fictitious charge against him. Detective Clark asked repeatedly whether the accused understood the caution, and the accused responded by asking repeatedly whether he could take action against the police. Eventually Detective Clark abandoned the topic of the caution, and went on the tell the accused that he had the right to make a telephone call, to which the accused replied “Well look, I don’t care”, that the accused had the right to have a solicitor, relative or friend present, to which the accused replied “I know that I’m going to be stuck here and screwed around all night”, and that he wanted to seize the accused’s clothing, to which the accused replied “Do what you want”. Detective Clark also asked the accused whether he had been given his rights previously, to which he replied “Oh well I know what my rights are, nothing”. Then, after clothing had been removed and placed in paper bags, the following exchange occurred:
QOkay, just have a seat again, Scott, just, for the record, prior to commencing this interview, can you state your full and correct name again for me, thank you.
ANo, I’m not telling you nothing.
QCan you announce your date of birth to me.
ANo.
QYour current home address.
ANo.
QOkay. Prior to commencing the interview I’m just going to read back the conversation that I had with you and which I made handwritten notes.
AAnd I ain’t getting shit, I ain’t getting nowhere, so you ain’t getting nowhere either.
QAll right. I’m just gonna read the conversation back to you that we had, all right.
AYeah, yeah, exactly.
QIf you wish to interrupt at any time, please do, feel free to, and I’ll ask you again at the end of the-
ADo what you want.
QConversation, whether you agree with what I’ve written.
ADo what you want.
Given Detective Clark’s non-compliance with s.74D with respect to the conversation at the house, should the conversation, the comments in the car and stairwell, and the interview at the police station, be treated as “a series of conversations” and, if so, must all four be excluded?
In R v Day (2002) 82 SASR 85 at 88 to 89 (paras 14, 15, 16, 22 and 23), Perry J discussed the expression “a series of conversations” in the definition in s.74C of “an interview”:
“Whether or not more than one conversation will constitute a “series” for the purposes of that definition will depend upon the circumstances of the case. It would be inappropriate to attempt to define in advance what might constitute a series for this purpose.
It is sufficient to observe that in this case, given that the relevant conversations took place over such a short time span, between the same persons and on the same topic, they should properly be regarded as a “series”.
Once that conclusion is drawn, it follows that the series of conversations constituted an “interview” for the purposes of s 74D, with the result that the requirements set out in that section should have been complied with at every stage.
….
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 s 74D, and to ignore another part of the series of conversations which, in breach of s 74D, has not been properly recorded.
While it is true that a question of admissibility or inadmissibility does not arise until the prosecution attempts to tender the evidence of the relevant interview, where there are a series of conversations, it is not open to the prosecution to pick and choose those parts which it seeks to tender, at least in circumstances in which there has been a breach of the Division with respect to any part of the “series” constituting the interview.”
In R v Blayney (2002) 220 LSJS 102 at 108 (paras 36 to 39), Doyle CJ said of the two conversations in that case, namely an initial conversation at the accused’s house and a subsequent interview at the police station:
“The submission on appeal proceeded on the assumption that the earlier conversation and the recorded interview were each part of the one “series of conversations”. It is not necessary to decide that point now, but I wish to make it clear that I do not necessarily accept the premise.
The detective went to Erik’s home to locate him, to identify him, and to ask him if he would agree to be interviewed at the police station. This conversation could have lasted no more than a minute or two.
The conversation and the interview are, in one sense, a series of conversations. One followed the other after quite a short interval, they involved the same people, they related to the same topic. But separate conversations should be regarded as constituting the one “series of conversations” only if there is some reason to do so. The matters identified by me are not, of themselves, such as to require a conclusion in every case that the conversation and the interview constitute “a series of conversations” for the purposes of s 74C. It is unlikely that Parliament intended to treat as one interview all conversations with a suspect simply because, in the sense identified, they can be said to be part of the one series.
Despite the matters identified by me, it is still necessary to consider whether those matters lead to the conclusion that the two conversations are part of the one series. I have no doubt that there will be circumstances in which it would be appropriate to regard successive conversations between an investigating officer and a suspect as separate interviews, and not as a single interview. It is impossible to identify in advance the circumstances in which that will be so, but that does not lessen my confidence that there will be such circumstances. Successive conversations are not necessarily part of the one series simply because they involve the same people and the same subject matter.”
In the case before me, the conversation and the comments occurred within half an hour or so, and involved the same people and the same subject matter. Irrespective of whether that is enough to bring them within the expression “a series of conversations”, I can see good reason, adopting the approach of Doyle CJ in Blayney, to categorise them in that way. Of course, even as conversations, the comments did not occur as a consequence of any proposal by the investigating officer to interview the accused. Rather they were volunteered in a way that could not have been anticipated for the purpose of recording them on video-tape or audio-tape. Yet Detective Clark chose to record them in his notebook and to read them to the accused in the early part of the video-taped interview, and the prosecution sought to lead them at the trial. Unless they can be linked with the conversation at the house to constitute “a series of conversations”, they may well be said to fall outside the scope and protection of the legislation.

Should I be satisfied that “the interests of justice” require the admission of the conversation and the comments, despite Detective Clark’s non-compliance?
In R v King & Pitson (No 2) (1998) 199 LSJS 111 at 115, Cox J said:
“The other factor that bears importantly on the interests of justice, as that expression is to be understood in s74E, this is, that 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, if they happen to come before a judge who takes a stricter view about Bunning v Cross and the particular case at hand than another judge might take. There should not be any room for calculated risks about the way the police move under s73D.”
In R v Byster (2001) 80 SASR 373 at 379, Prior AJC, with the concurrence of the other members of the Court, said:
“Proof of compliance is now a condition precedent to admissibility. The prosecution has an onus with respect to that as it does when the issue of the voluntariness of any admissions is raised: R v Thompson [1893] 2 QB 12 at 18; Attorney-General (NSW) v Martin (1909) 9 CLR 713 at 722-724, 729; R v Bradshaw (1978) 18 SASR 83 at 102. Where both matters arise in a particular case they could be dealt with together. That would be a matter for a trial judge’s discretion in the circumstances of the particular case. However, those issues should certainly be determined ahead of considering the exercise of the discretions to exclude evidence referred to in R v Lobban (2000) 77 SASR 24.”
It seems to me that Detective Clark’s non-compliance cannot be salvaged “in the interests of justice” by the fact that he read his notes to the accused in the early part of the video-taped interview. Clearly a reading of notes by a police officer in purported compliance with s.74D(1)(c)(ii) must be accompanied by an understanding on the part of an accused person of what is being read, so that the person can exercise his right provided by s74D(1)(c)(iii) to point out errors or omissions. Yet it is apparent from a playing of the video-tape that the accused did not hear or understand part at least of what was read to him by Detective Clark. He was not listening or concentrating at that time, and doubtless this was due wholly or substantially to his intoxication. It is true that, after Detective Clark read his note of the comment in the stairwell, the accused said “I don’t agree with it”. Nevertheless, the fact remains that the accused did not have a meaningful opportunity to dispute other aspects of the notes, and so to that extent the protection of the section was lost.
I turn finally to the question whether the prosecution was able to establish that the video-taped interview was voluntary. The test is whether the statement has been made in the exercise of a free choice: McDermott v The King (1948) 76 CLR 501. At page 511, Dixon J said:
“At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.”
The accused’s failure to hear or understand the caution, his answers to subsequent questions, and Constable Clark’s refusal to allow him to go to the toilet, need to be considered together in the context of his substantial intoxication. The prosecution has not satisfied me on the balance of probabilities that the interview was voluntary, and the interview must be excluded for that reason. In any event, I would have exercised my discretion to exclude the interview on the grounds that it was oppressive and unfair (R v Lee (1950) 82 CLR 133). Counsel for the prosecution sought comfort from some of the accused’s evidence at the voir dire about the interview, but the weight of that evidence is much diminished by being, in my assessment, no more than sober reconstruction in July 2003 of intoxicated behaviour in September 2002.
For these reasons, I ruled that the conversation at the house, the comments in the car and stairwell, and the interview at the police station, should be excluded from the prosecution case at the trial.

[2003] SADC 107

29 July 2003