R v Tanner - [2005] SASC 416

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TANNER
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Debelle)
10 November 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
Appeal against conviction of aggravated serious criminal trespass in non-residential building and theft - application for leave to appeal on ground 3 - appellant pleaded guilty - trial by judge alone - whether trial judge erred in ruling on the voir dire that the record of police interview in which the appellant made relevant admissions was admissible at trial - appellant argued that certain procedures pursuant to Summary Offences Act s 79A were not complied with and that the admissions were not voluntary and should therefore be excluded - Held: there was sufficient compliance with the police obligation to facilitate a phone call upon arrest and to explain to the appellant his statutory rights; there is no basis for the exercise of the discretion to exclude the interview from evidence as a result of any unfairness to the appellant - leave to appeal on ground 3 refused - appeal dismissed.
Summary Offences Act 1953 s 79A, referred to.
Wendo v R (1963) 109 CLR 559; Collins v R (1980) 31 ALR 257, applied.

R v TANNER
[2005] SASC 416
Court of Criminal Appeal: Doyle CJ, Duggan and Debelle JJ

DOYLE CJ. I agree with the orders proposed by Duggan J, and with the reasons that he gives for making those orders. There is nothing that I wish to add to his reasons.
DUGGAN J. The appellant was charged on an information filed in the District Court with the offences of aggravated serious criminal trespass in a non-residential building and theft. The offences were alleged to have been committed on 12 August 2003. They arose out of the same incident. The prosecution case at trial was based on admissions alleged to have been made by the appellant to police officers at the Berri Police Station on 18 August 2003.
Upon arraignment, the appellant pleaded not guilty to both offences. At the commencement of the trial before judge alone, the appellant applied for the exclusion of the admissions from evidence on the ground that they were made involuntarily or, alternatively, that they should be excluded in the exercise of the court’s discretion.
After conducting a voir dire hearing the trial judge refused to exclude the police interview which contained the admissions. The trial proceeded and the appellant was convicted of both offences. He now appeals against conviction on grounds which relate to the ruling by the trial judge to admit the police interview into evidence.
In order to deal with the issues raised on appeal it is necessary to refer to the circumstances surrounding the interview which the appellant sought to have excluded from evidence. At approximately 1.00 pm on 18 August 2003 police officers spoke to four occupants of a room at a hotel in Waikerie. The appellant was one of the occupants and, after making some enquiries, Detective Shelton ascertained that there was a first instance warrant in existence for the appellant who had allegedly breached the conditions of a bail agreement.
The appellant was then arrested and told that he would be conveyed to the Berri Police Station. According to Detective Shelton, he advised the appellant of his rights shortly after the arrest. Detective Shelton’s evidence of what he said to the appellant is set out later in these reasons.
The police officers and the appellant arrived at the Berri Police Station at approximately 3.00 pm. Detective Shelton went to the rear of the police van to let the appellant out. According to Detective Shelton’s evidence he noticed that the appellant was crying. When asked what was wrong, the appellant said that “bikies” were after him because he had taken their marijuana plants. Detective Shelton told the appellant that he would discuss the matter further when the conversation could be video recorded.
After the nature of the warrant was explained to the appellant, he was taken to an interview room in the police station. The video recorded interview then commenced.
It is not disputed that, in the course of the interview, the appellant said that he had breached the home detention conditions of his bail agreement because two groups of bikies were pursuing him. He said they had made threats about him to his father. The appellant said he and two others had broken into a crash repair shop at Wingfield and stolen a quantity of marijuana. He said he found out later that the marijuana belonged to some bikies. The appellant gave details of the premises which had been broken into and the threats which he said he had received after stealing the marijuana. As a consequence of these admissions, the appellant was charged with the two offences referred to above.
Although there were 15 grounds of appeal, all but four were abandoned at the hearing of the appeal. The grounds which remain are as follows:
3The prosecution case relied solely upon the appellant’s confession. At trial the prosecution failed to discharge the onus to prove that the appellant’s confession was voluntary. The learned trial judge ought to have excluded the appellant’s confession on the grounds that the evidence on the voir dire and Rule 9 application established that the appellant’s confession was not voluntary.
4In the alternative, the learned trial judge ought to have excluded the appellant’s confession in the exercise of his discretion on the grounds of unfairness, illegality or public policy.
13The learned trial judge erred in failing to rule upon that part of the appellant’s Rule 9 application asserting non-compliance by police with section 79A of the Summary Offences Act 1953 (the Act).
14In the alternative, if the learned trial judge determined that the police had complied with section 79A, of the Act, the learned trial judge erred in so doing.
A single judge granted leave to appeal on grounds 4, 13 and 14. Leave to appeal on ground 3 was refused by the single judge, but the appellant has renewed the application for leave before this court.
At the hearing before this court the appellant’s argument focused on three issues. Firstly, it was argued that the police did not permit the appellant to exercise his right to make a telephone call pursuant to s 79A of the Summary Offences Act 1953 (“the Act”). Secondly, it was claimed that the appellant was not cautioned adequately in accordance with the requirements of s 79A. Thirdly, it was put that the prosecution did not establish the voluntariness of the admissions made by the appellant.
In so far as it is relevant to these arguments, s 79A provides as follows:
79A   Rights upon arrest
(1)Subject to this section, where a person is apprehended by a police officer (whether with or without a warrant) –
(a)     the person is entitled to make, in the presence of a police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts and
(b)     where the person is apprehended on suspicion of having committed an offence –
(i)    the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subject while in custody; and
(ii)     if English is not the person’s native language – the person is entitled, if he or she so requires, to be assisted at an interrogation by an interpreter; and
(iii)    the person is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law).
.. . . . . . . . . . .
(3)A police officer must, as soon as is reasonably practicable after the apprehension of a person –
(a)     inform that person of his or her rights under subsection (1); and
(b)     warn the person that anything that he or she may say may be taken down and used in evidence.
The telephone call
Detective Shelton said in evidence on the voir dire before the trial judge that he explained the appellant’s arrest rights to him when he was placed in the police van at Waikerie. He said:
I told him that he was entitled to make a telephone call to a nominated friend or relative to inform that person of his whereabouts, also that he was entitled to have a solicitor, relative or friend present during any interrogation or investigation he was subjected to whilst in custody. I advised him that if English wasn’t his native language he was entitled to be assisted by an interpreter, and I also told him that he was entitled to refrain from answering questions and I explained further to him that that meant that he didn’t have to answer questions and anything he did say could be recorded and used as evidence.
After the appellant arrived at the Berri Police Station he said he wanted to telephone his mother. The number was dialled, but there was no answer. The police officer referred to the attempt to contact the appellant’s mother when the video recorded conversation commenced:
17Ok, and a few moments ago when we came in here, I once again reminded you of those things. Now as a result of that you requested to phone your mum, Christine Tanner. Christina Tanner. And you gave me a phone number here. Now as you saw, a moment ago, I phoned that number and there was no answer. Did you wish to telephone anybody else to let them know where you are?
18Maybe my cousin? She’s like, she knows what’s going on with these blokes.
19Ok? Do you want to do that now, or at the end of our talk?
20At the end if you want.
21Well it’s up to you.
22Ok.
23Did you wish to contact a lawyer or anything and get any legal advice about this? Or have anybody present?
24That’s alright.
The interview continued without the appellant making a further telephone call.
Mr Mancini, for the appellant, argued that the unanswered call did not amount to an exercise of the appellant’s right to make a telephone call and that the police officer should have done more to enable the appellant to exercise this right.
Section 79A gives a person who has been apprehended by the police the right to make a telephone call to a relative or friend. The conferring of this right implies an obligation on the part of the police to facilitate the exercise of the right.
I am of the view that there was sufficient compliance with the police obligation to facilitate the call. I accept that the police were required to do more than attempt to contact the appellant’s mother. It was appropriate to advise the appellant that he was entitled to telephone someone else. However, Detective Shelton did ask the appellant if he wished to telephone another person. I do not think the police officer should have told the appellant that the telephone call to the appellant’s cousin could be made then or at the end of the interview. However, the officer went on to make it clear that it was up to the appellant to decide when he wanted to make the telephone call. The appellant’s response indicates that he understood he had such a choice. In my view, the police officer was not obliged to take the matter any further at that stage and I do not think that there was a breach of the Act or any resulting unfairness to the appellant.
The trial judge appears not to have dealt with this argument. However, it was unnecessary to decide any issue of credibility in relation to the point and this court is in as good a position as the trial judge to decide whether there was a breach of the Act giving rise to the exercise of the discretion to exclude the evidence.
Advising the appellant of his rights
I have said that when the appellant was placed in the police van at Waikerie he was advised of his statutory rights. Detective Shelton reminded the appellant of these rights at an early stage of the video recorded interview:
11Before we go any further Brian, I want to let you know that you don’t have to answer my questions, and anything you do say is being recorded and can be used as evidence. Do you understand that?
12Yep.
13Now I understand you are a little bit upset. If you need to stop, just say so, alright? We will get you a drink. There are some tissues there, that sort of thing. But you don’t have to answer my questions any way unless you want to. Now Brian, you’ve been arrested and you will remember back when I spoke to you at Waikerie, I explained certain rights to you.
14Yep.
15Ok? The right to make a telephone call to let someone know where you are, to have a solicitor, relative or friend present during any interview or any investigation whilst you are in custody, ok? You can have an interpreter if English is not your native language, and I also told you that you didn’t have to answer questions, and that anything you do say will be recorded and could be used as evidence. Do you remember me giving you those rights?
16Yes.
Shortly after this conversation there was further reference to the right not to answer questions:
25Ok, just remember that this is also being recorded on tape, so you’re shaking your head, but it you could just say no, if that’s what you mean. Ok. And you do understand that you don’t have to answer the questions?
26 Yes.
The police officer then referred to the appellant’s comments about the bikies which he had made while being removed from the police van. He reminded the appellant that he (the police officer) had said “we will try to get to the bottom of that”, but went on to say that he would deal with the breach of bail first. Then, after discussing the breach of bail, the police officer said:
62Ok. Alright. Once again I remind you that you don’t have to answer my questions and anything you say can be used in evidence against you. So if you admit to offences, you could be charged. Do you understand that? Ok. Tell me about this situation that’s got you in this mess?
There followed a conversation about the theft of the marijuana during which the appellant made the admissions.
Mr Mancini submitted that the cautions which were given to the appellant were in general terms and did not relate specifically to the offences with which the appellant was later charged. He argued that they were inadequate in so far as the questioning on those charges was concerned.
The explanation given to the appellant at Waikerie concerning his rights was in the context of his arrest on the warrant. Detective Shelton had no knowledge of the property offences at this stage. However, the appellant told him about the stealing of the marijuana before the video recorded interview. It was anticipated that there would be a discussion about these matters during the interview and, at the commencement of the interview, Detective Shelton advised the appellant on two occasions that he did not have to answer questions.
In my view the appellant would have understood these cautions to mean that he did not have to answer questions on any topic during the video recorded interview.
Shortly after these cautions were administered in the interview, the appellant was reminded of his statement about the theft from the bikies and given to understand that this would be addressed in the course of the interview. Then at Q62 the discussion as to bail concluded and the police officer commenced to question the appellant on his dealings with the bikies. At this stage, the appellant was told, once again, that he did not have to answer any questions and that, if he admitted to offences, he could be charged. This caution was directed to the questions which were to follow and the topic was clearly identified as the circumstances leading up to the threats by the bikies.
I do not accept that the appellant might have been given the impression that the caution did not apply to the questioning on this topic. The appellant did not give evidence on the voir dire and no such inference can be drawn from the course of the conversation. On the contrary, I think the series of cautions adequately conveyed to the appellant that he did not have to answer any questions during the interview and, more specifically, that he did not have to answer questions about the matter which led him into trouble with the bikies.
After the appellant referred to the threats made by the bikies, the police officer said at Q84:
Alright. So you said something before about a rip. Alright, tell me about that?
It would have been appropriate to add a further caution at this point. However, in my view, this was not essential to the appellant’s proper understanding of his rights.
In my view, the appellant’s argument that the interview should have been excluded by reason of inadequate explanation of the appellant’s statutory rights must be rejected.
Involuntariness
Mr Mancini submitted that the admissions in relation to the offences before the court were made involuntarily because of the effect on the appellant of an inducement held out to him by Detective Shelton. The inducement, so it was said, consisted of an undertaking to the appellant to help him in his predicament with the bikies if he answered Detective Shelton’s questions.
When the issue of voluntariness of confessional material is raised, the onus is on the prosecution to establish the voluntariness of the confession on the balance of probabilities: Wendo v R (1963) 109 CLR 559.
In Collins v R (1980) 31 ALR 257 at 307 Brennan J said:
A confession is not held to be involuntary merely because the confessionalist is by nature or temperament predisposed to confess and is furnished with an opportunity to do so; it is the effect of an external factor, of the kind referred to by Dixon J in McDermott’s case, upon the will which determines admissibility. ‘Voluntary’ does not mean ‘volunteered’, but ‘made in the exercise of a free choice to speak or be silent’. (R v Lee (1950) 82 CLR 133 at 149).
So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist.
And later at 308:
An assessment must be made of the effect of the verbal and non-verbal conduct of the police officer (or other person in authority) upon the will of the confessionalist in the circumstances in which the confession is made. If the evidence does not show that the confession was made in the exercise of a free choice by the confessionalist to make it, the confession is inadmissible.
In the present case, the appellant raised the topic of the taking of the marijuana plants of his own volition. Detective Shelton gave evidence of the conversation which took place as the appellant was being removed from the police vehicle:
QWhen you let Mr Tanner out did you notice anything about him?
AYes, he was crying, obviously upset about something.
QDid you do anything about that?
AI asked him what was wrong.
QDid he give you an answer?
AYes, he did. He told me that the bikies were after him because he had done a rip and I clarified with him what he meant by ‘done a rip’ and he said he ripped off their plants.
QThat was all that was said?
AAt that point in time I told him that we would discuss it further and get to the bottom of it, but we would do it in an environment where I could record it.

At this stage the police officer knew nothing about this incident. His comment that they would “get to the bottom of it” could not be construed as an inducement to the appellant to provide details of the incident.
In the early part of the video recorded interview the appellant referred to the bikies by way of an explanation for the breach of his bail conditions. He said:
I was supposed to stay home, and that’s what I was doing, but cos I, the bikies are after me man, I’ve got two lots of bikies after me. They tell me to get out of Adelaide or they are gonna kill me and shit. They rang my Dad. Threatened my Dad and shit.
It was at this point that a further caution was administered to the appellant and he was told that if he admitted to offences he could be charged. He was then asked further questions about the incident which he had raised.
In my view it cannot be said that the exercise of the appellant’s choice to speak or be silent was influenced by an inducement in the form of an undertaking by the police officer that the appellant would be advantaged in his predicament if he told the police about the taking of the marijuana.
It is true that Detective Shelton agreed in cross-examination that he attempted to convey to the appellant that he could help the appellant, although he denied that this was by way of encouraging him to speak. However, this is not to say that an inducement was held out to the appellant to encourage him to confess; nor does it help to establish that the appellant revealed the information because of anything said by the police officer. It is clear from the circumstances that, from the outset, the appellant wished to explain why he breached his bond. The fact that he volunteered the information in the earlier conversation without any encouragement from the police officer illustrates that this was his intended purpose. He told the police officer that he had “ripped off the plants” before the video recorded interview commenced.
Part of the video recorded interview was played during the hearing of the appeal. It is apparent that the appellant was quite upset during the interview. However, his condition was not such as to give rise to concern as to his understanding or his capacity to exercise the rights which were explained to him. After taking all relevant circumstances into account, I am satisfied that the prosecution discharged the onus of establishing that the admissions were made voluntarily. Furthermore, for the reasons which I have already given, I am of the view that there was no basis for the exercise of the discretion to exclude the interview from evidence because of any unfairness to the appellant.
I would refuse leave to appeal on ground 3 and dismiss the appeal based on the other grounds argued by the appellant.
DEBELLE J. I agree with the substance of the reasons of Duggan J. I agree that the appeal should be dismissed.