R v Tracey (No 5)

Case [2005] SASC 359

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Voir Dire)

R v TRACEY & ORS (NO 5)

Reasons for Ruling of The Honourable Justice Nyland

22 September 2005

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED

Application to exclude statements and records of interview made to police - admissibility - whether failure to comply with s 79A of the Summary Offences Act 1953 (SA) - discussion of voluntariness and fairness - records of interview excluded.

Summary Offences Act 1953 ss 74D and 79A, referred to.
Cleland v The Queen (1982) 151 CLR 1; R v Azar (1991) 56 ACrimR 414; R v Dolan (1992) 58 SASR 501; The Queen v Szach (1980) 23 SASR 504; Van der Meer v The Queen (1988) 62 ALJR 656; R v Murphy (1996) 66 SASR 406; R v Bueti; R v Morrissey (1997) 70 SASR 370; R v Bondareff, Usachov and McCabe (1999) 74 SASR 353; R v Loader [2003] SASC 16 (Unreported); R v Kamleh (No 2) (2003) 226 LSJS 4, discussed.

R v TRACEY & ORS (NO 5)
[2005] SASC 359

Voir Dire Ruling on Applications to exclude evidence of Police Interviews:

  1. In para 7 of the second Rule 9 application dated 15 February 2005 and filed on 8 March 2005, the accused John Tracey (Tracey), sought an order that any reference to conversation(s) with, and a statement said to have been taken from him on 10 August 2002 be excluded.  That statement was taken by Senior Constable David William Scutchings at Tracey’s home at 19 Wilterna Crescent, Smithfield on the morning of 10 August 2002.

  2. The grounds relied upon in that application were that the evidence was inadmissible as being involuntary or in the alternative should be excluded in the exercise of the court’s discretion as being unfairly obtained.

  3. In a Rule 9 application dated 17 March 2005, the accused Joshua Considine (Considine) sought an order that the statements made by him on 15 August 2002, (but signed on 19 August 2002) be excluded.  That statement was recorded by Detective Sergeant Michael Polacek at 114 Main North Road, Evanston in handwritten form on 15 August 2002.  It was thereafter typed in declaration form and signed on 19 August 2002.

  4. Considine contended that Polacek failed to comply with the requirements of s 74D of the Summary Offences Act 1953 and the statement is therefore inadmissible. Considine further contends in the alternative that Polacek had sufficient information before him to reasonably suspect that Considine was present in the company of Wallace and Tracey (the co-accused) at 3 Filsoll Street, Elizabeth Downs at the time of the shooting but no caution was administered, in addition to the failure to comply with s 74D of the Summary Offences Act 1953. 

  5. In a Rule 9 application filed on 20 January 2005, Michael Wallace inter alia sought an order for the exclusion of the record of interview between him…

Continue reading R v Tracey (No 5)

Sign in free to access the full text

Details
AGLC
R v Tracey (No 5) [2005] SASC 359
Case
[2005] SASC 359
Decision Date

CaseChat Overview and Summary

The case of R v Tracey (No 5) involved an application to exclude statements and records of interview made to police. The issue before the court was whether the failure to comply with Section 79A of the Summary Offences Act 1953 (SA) rendered the evidence unfairly obtained or improper to admit. Specifically, the court had to decide whether the interview conducted by Polacek on 10 August 2002 with Wallace complied with the legislative requirements. Polacek, a senior member of the investigation team, acknowledged being aware of the statutory requirements but did not consider them necessary as he did not view Wallace as a suspect at the time of the interview.

The legal issues centred around the admissibility of the evidence obtained during the interview and whether Polacek's failure to comply with Section 79A rendered the evidence unfair or improperly obtained. The court had to determine whether the statutory requirements were essential to ensure the fairness of the interview and the admissibility of the statements made by Wallace. Polacek argued that Wallace was merely a person of interest, and thus, the statutory requirements did not apply. However, the court had to assess the broader context of the investigation, including the views of other officers who considered Wallace a suspect.

The court found that Polacek's assertion that Wallace was not a suspect was inconsistent with the views of other officers involved in the investigation, who considered Wallace a suspect based on various factors. The court concluded that Polacek's failure to comply with Section 79A rendered the evidence unfairly obtained and improperly admitted. Consequently, the records of the interview were excluded from evidence. The court's decision highlighted the importance of adhering to statutory requirements to ensure the fairness and admissibility of evidence obtained during police interviews.

The court ordered that the records of the interview conducted by Polacek with Wallace on 10 August 2002 be excluded from evidence. This decision underscores the necessity for police officers to strictly comply with statutory requirements when conducting interviews with individuals considered suspects, to maintain the integrity and fairness of the evidence obtained.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It was put to Polacek that O’Donohue had said in evidence that prior to 10 August, or at least that morning, Wallace was a suspect in the killing of Stuart Watson. Polacek responded (Tr 1161): It had been debated and I debated strongly that there was no evidence that put him in the car or driving the car at the time of the shooting, and until something turned up that positively linked him to driving or being in the car at that time, then I considered him a person of interest.Conclusion: Polacek was a senior member of the team investigating the shooting of Stuart Watson and as appears from the above summary of facts, was the police officer who interviewed Wallace at the Elizabeth police station on 10 August 2002. Polacek acknowledged that he was well aware of the requirements of s 79A of the Summary Offences Act 1953 but did not see the need to comply with the provisions thereof before he commenced the interview with Wallace. He did not consider Wallace to be a suspect at the time of that interview, but simply a person of interest. Notwithstanding Polacek’s view that Wallace was not a suspect, he saw fit to record the interview and to do so in the presence of Smalbil. Polacek denied Smalbil was acting as a corroborating officer, but this is to be contrasted with Loch’s belief as to Smalbil’s role. Polacek obviously turned his mind to the need to caution Wallace as he twice said to Wallace that he should “probably” tell him that he was not obliged to answer any questions. He failed, however, to give Wallace the proper caution required for a suspect who was about to be interviewed. Although I am concerned with Polacek’s state of mind at the time that he questioned Wallace, Polacek’s assertion that he did not consider Wallace to be a suspect is to be contrasted with the views of the other police officers involved in the investigation. Loch prepared his affidavit in support of the telephone intercept over 7-8 August 2002 and, in that affidavit, clearly stated that Wallace was a suspect in the murder. By 8 August 2002, O’Donohue considered Wallace to be a suspect based on the white Commodore vehicle, the phone calls to the house and the fact that he had been seen driving the Commodore. Nelson also regarded Wallace as a suspect by the evening of 8 August 2002. I am satisfied that at the briefing on the morning of 10 August 2002, Wallace’s role as the driver was discussed due to the note to that effect in Parfitt’s notes. Even if Polacek had a different view from the other officers involved in the investigation as to Wallace’s role in the killing of Stuart Watson, it was clear by 10 August 2002, that everyone involved in the matter considered that the white Commodore registered in the name of Christine Dal Santo was the car that had been used in the shooting. That was the reason for it being seized from Wallace outside Cash Converters. At no time, however, was there any suggestion that a woman had been the driver at the relevant time.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.