R v Tanner - [2004] SADC 149

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TANNER
Reasons for Ruling of His Honour Judge Anderson
28 October 2004
CRIMINAL LAW
Voir dire application to exclude record of interview - application refused
Summary Offences Act 1953 ss74D, 78, 79, 79a, referred to.
R v Dolan (1992) 58 SASR 501, applied.

R v TANNER
[2004] SADC 149

The Accused is charged with one count of Aggravated Serious Criminal Trespass in a Non‑Residential Building and one count of Theft. He has entered pleas of not guilty and the matter has proceeded to a voir dire hearing based upon a Rule 9 Notice delivered by his counsel, Mr Mancini. Ms Lam appeared to prosecute.
Evidence was given by Detective Senior Constable Shelton and Senior Constable Francis. The Accused did not give evidence.
Before I turn to the arguments in support of the application to exclude the video record of interview between those officers and the Accused, I set out the relevant circumstances bearing in mind of course that the onus of proof is upon the Crown to establish beyond reasonable doubt that the record of interview is admissible and that the application to exclude it should be rejected.
On 18 August 2003 Detective Shelton, in the company of other police officers, attended at a room in a motel in Waikerie. There were four persons in the room, of whom the Accused was one.
Enquiries made by Detective Shelton revealed that the Accused was the subject of a first instant warrant issued by the Port Adelaide Magistrates Court. Consequently, the Accused was arrested. He was taken to a police vehicle where, in the presence of Senior Constable Francis, Detective Shelton gave him his arrest rights, placed him in the vehicle, and they then drove the vehicle to the Berri police station. There was no interaction between the police and the Accused during the journey.
When the Accused entered the police vehicle he was calm and not in any way obviously distressed. I accept the evidence of Detective Shelton that the Accused’s rights were given to him prior to him so doing and I accept the evidence of Senior Constable Francis that he was present and heard that occur. Some criticism was directed to those officers for failing, then and there, to note that occurrence. There is no merit in that objection.
When the Accused was removed from the police vehicle at Berri he was crying. He was asked by Detective Shelton why he was distressed and replied “..... that the bikies were after him because he had done a ‘rip’ and they were trying to kill him” (Exhibit VDD5 - Shelton’s statement of 21 November 2003, page 5, lines 1 and 2). An enquiry by Detective Shelton as to what was meant revealed the possibility that the Accused had stolen some cannabis plants a few days earlier and thereafter had received threats. Correctly, Detective Shelton told the Accused not to say anything further and that he would speak about the matter when the conversation could be recorded. This was the correct approach and is unable to be criticised.
The Accused was taken to the charge counter in the Berri police station. It is not in dispute that he continued to cry for the remainder of the time relevant to this application for exclusion. At the charge counter the Accused was charged in relation to the warrant.
The evidence of the police officers indicates that the effect of the warrant was explained to the Accused at that time. There is no evidence as to when a copy of the warrant arrived at Berri or if it was actually shown to the Accused. No notes were made. Detective Shelton relied upon his experience of this common procedure.
I accept the evidence of Detective Shelton that the Accused was given his bail rights at this time.
Detective Shelton was criticised for not making notes of both the giving of the bail rights and this explanation. It was said that there was thereby a breach of s79(2) of the Summary Offences Act 1953 (“the Act”).
The breach of s79(2) relied upon, after a but faint early suggestion that the Accused should have been taken to a police station other than Berri, was the failure to produce the warrant of commitment to the Accused “as soon as conveniently may be” (s79(2)).
As I have said, no warrant was produced in evidence and no certain evidence of such production to the Accused was given.
The evidence of Detective Shelton was that a faxed copy of the warrant was likely produced, but that in any event the Accused was given an explanation of the effect of the warrant when at the charge counter by him. Detective Shelton said that this was a course always followed in such an arrest and was followed in this instance. There is no other evidence.
I accept his evidence and find that the Accused was so informed. If there was no production of the warrant, accepting that there was the explanation given, I am not of the view that there exists any basis upon which to find that the arrest of the Accused, or what then followed, is on this basis, unlawful so as to ground the exclusion of the record of interview.
I am not satisfied that s78 of the Act is relevant to this arrest of the Accused. I am unable to discern any link between that section and s79 in the instant circumstance.
Exhibit VDD3 is an extract from the Charge Book. It accords with the evidence that the Accused arrived at the Berri police station at about 3.00pm, was processed and then taken for interview by Detective Shelton. That fact is revealed in the extract set out for 1525 hours as it was in the evidence of Detective Shelton.
Mr Mancini sought to derive from the use of the word “Detained” in that entry that somehow the Accused was no longer within the jurisdiction of the officer in charge of the police station and thus there was a failure to comply with s78(3) of the Act. I have previously expressed the view that this section has no application to this matter and thus this submission must fail. In any event, whilst the Accused was within the confines of the Berri police station he remained within the jurisdiction of the officer in charge notwithstanding the fact of his interview in relation to other matters by other police officers.
Both Detective Shelton and Senior Constable Francis said that in the video recording room, and before commencing the record of interview, Detective Shelton again gave to the Accused his arrest rights. Detective Shelton said he was satisfied that they were understood by the Accused. No note was made of this event at the time although it was spoken of at the outset of the record of interview a few minutes later. The record of interview commenced at 1529 hours.
Detective Shelton said it was done so as to facilitate any request by the Accused before the record of interview began.
As a result of the giving of rights at that time, the Accused requested that a telephone call be made to his mother. Detective Shelton said that was done, but that the number was engaged and so the record of interview commenced. The request for the call to be made indicates that the Accused understood what he had been told.
Mr Mancini was critical of there being no note taken of this pre‑record of interview event. The event was mentioned early in the record of interview and agreed to by the Accused who, inferentially, also agreed that such a telephone call had been made with that result (Q17). Nothing turns on the failure to earlier note this conversation. At this time s74D of the Act was not relevant.
At the outset of the record of interview Detective Shelton twice advised the Accused that he was not obliged to answer questions (Q11 and Q13). The Accused by his answers indicated that he understood and agreed (Q12 and Q14).
The Accused agreed that he had been given “certain rights” when arrested at Waikerie (Q11). In Q15 those rights were set out in full and the Accused agreed that they were the rights which had been given to him (Q16). In Q17 the events in the room preceding the commencement of the record of interview were confirmed and the Accused was asked if there was another person he wished to advise of his whereabouts. He nominated a cousin - Q18 - and then agreed, in Q22, to leave it until the record of interview was complete.
Mr Mancini was critical of Detective Shelton offering the alternative of delaying the implementation of the request - Q19. He suggested that this was taking advantage of the Accused who was still crying and distressed. Indeed, it was continually suggested that because the Accused was crying and upset that it was improper to continue the record of interview as it was taking advantage of the Accused.
In this regard I have looked carefully at the video recording of the record of interview and the transcript thereof. In my opinion, even though the Accused continued to cry, he was well aware of what was occurring, understood his rights and continued to participate in an active and forthright manner in the record of interview. At Q46 and Q47 he agreed that he was “OK”. There is no basis for any suggestion that the interview was unfair or that the Accused was in any way induced to answer or to do anything contrary to his will. In fact, notwithstanding his emotional state, he answered all the questions directly and in a sensible fashion. At no time was he in any way prevailed upon to answer. Indeed, towards the conclusion of the interview he voluntarily drew a plan for Detective Shelton - hardly the act of a person wishing not to be part of this record of interview, as his counsel suggested.
The Accused agreed with all that Detective Shelton said in evidence occurred up until his arrival at the Berri police station (Q16). In addition, he agreed with the evidence Detective Shelton gave as to the conversation between them when the Accused came out of the police vehicle at Berri (Q40-Q45).
After those matters the record of interview turned to the breach of bail from Q48 onwards. The Accused confirmed to Detective Shelton that he was in breach of home detention bail (Q60-Q61). He explained why it was that he had breached his bail conditions. Notwithstanding his emotional state, his explanation was rational, coherent and comprehensive.
In the course of this explanation he gave clear details of the “rip” to which he referred upon leaving the police vehicle earlier in the afternoon. However, before so doing he was again warned that, on this topic, he was not required to answer questions and the use to which any answers may be put (Q62). This complies with the obligation described in R v Dolan (1992) 58 SASR 501.
It was in the course of these subsequent answers that the Accused drew his plan (Exhibit VDP2) and gave a running description of its contents as he did so (Q286).
At the conclusion of the record of interview the Accused was told he would be charged with breach of bail and, indeed, the charge book entry confirms that that occurred at 1605 hours. I am satisfied that he was also given his bail rights in relation to this second charging. The record of interview had concluded at 1555 hours.
Detective Shelton told the Accused at that time that he would “make some more enquiries” into what the Accused had told him about the “rip” (Q331). In evidence he said he did so and that, the next day at 1130 hours, he charged the Accused with the current offences. He did so without any further discussion with the Accused.
There is no doubt in my mind that when he spoke after Q331, Detective Shelton was still investigating the possible commission of offences as described by the Accused in this record of interview. He had not “reached a stage in his investigations at which he has reasonable grounds for suspecting [the Accused]” - R v Dolan (supra) @ 505.
Consequently, s74D of the Act has no application to this investigation. At the time when the record of interview concluded Detective Shelton had, by any measure, an incomplete version of events. The Accused had told him of a possible offence but was unable to say when or precisely where it occurred. There was not enough for Detective Shelton to “suspect” or “have reasonable grounds to suspect [the Accused] of having committed an indictable offence” as required by s74D(1) before the requirements of that section are triggered. Notwithstanding this, the interview was recorded as required by that section. In these circumstances there can be no criticism of the failure to directly record on video the earlier warning which led to the attempt to telephone the Accused’s mother.
In my view, none of the grounds relied upon in the Rule 9 Notice, including those based more upon what Mr Mancini called “dignity” than any recognised legal right, have been made out. I am not of the view that Detective Shelton had a conflict of interest on the basis that the Accused was a “victim”, because of his distress, and that therefore he acted improperly in proceeding with the questioning.
Should the discretion to exclude have arisen on the ground either of unfairness or voluntariness or as a matter of public policy, or any combination of them, I would not exercise that discretion in favour of the Accused.
The application to exclude the record of interview is refused.