R v Tracey (No 5)

[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 and Detective Sergeant Polacek on 10 August 2002.  That interview was recorded on video at the Elizabeth police station.  The Rule 9 notice does not contain particulars of the grounds upon which that order is sought.

6. I subsequently heard evidence with respect to these applications and on 3 June 2005, I reserved my decision with respect to them.

7. On 26 August 2005, before I delivered my ruling with respect to any of these applications, Tracey and Considine each pleaded guilty to the crime of manslaughter and those pleas were accepted by the Crown in satisfaction of the information laid against them.  Michael Wallace continued, however, to maintain his plea of not guilty to either the charge of murder or manslaughter.  On 31 August 2005, I ruled that the record of interview between Polacek and Wallace be excluded from evidence at the trial but I reserved my right to file detailed reasons in support of that ruling at a later date.

8. Although it is no longer necessary to rule on the applications of Tracey and Considine, I have incorporated in these reasons some of the submissions made by their counsel in the course of argument on the voir dire as some of those submissions were common to the applications made by all accused and were adopted by counsel for each of them.  It is also necessary to have regard to the course of the investigation relating to all three accused in the period leading up to Polacek’s interview with Wallace on 10 August 2002, in order to understand Wallace’s status at the time of that interview.

9. The following witnesses gave evidence on the voir dire:

   Detective Jennifer Rose O’Donohue.  At the relevant time, she was a detective stationed at the office of Major Crime and was one of the initial investigators into the shooting death of Stuart Watson.

   Senior Constable David William Scutchings who was at the relevant time based at  the Elizabeth investigation section.

   Sergeant Michael Josef Polacek, a detective stationed at Major Crime.

   Senior Constable Steven Ralph Parfitt who was designated as the field intelligence officer for the investigation.

   Detective Sergeant Shane Michael McMahon of the investigation support branch.  He was involved in the surveillance with respect to this investigation.

   Senior Constable Peter Hendrik Loch who at the relevant time was working at the Elizabeth CIB.  Loch was seconded to Major Crime to assist with the investigation.

   Detective Brevet Sergeant Mark Andrew Nelson who was stationed at Elizabeth CIB.

10. In the course of the hearing, the following exhibits were tendered in evidence:

EXH	VDJT045	Redacted copy of tactical operations order relating to the premises at 19 Wilterna Crescent, Smithfield.
EXH	VDJT046	Statement of Bianca Johnston taken in handwriting by Detective O’Donohue at 19 Wilterna Crescent, Smithfield on 10 August 2002.
EXH	VDJT048	Copy of the statement of Tracey taken in handwriting by Senior Constable Scutchings at 19 Wilterna Crescent on 10 August 2002.
EXH	VDJTO49	A statement of Stephen Robert O’Leary in the handwriting of Detective Sergeant Polacek dated 4 August 2002.
EXH	VDJT050	Surveillance request dated 7 August 2002.
EXH	VDMW051	Video recording and transcript of the interview of Michael Wallace at the Elizabeth police station on 10 August 2002.
EXH	VDJC052	Statement of Joshua Considine, taken in handwriting by Polacek on 15 August 2002.
EXH	VDJC053	Signed statement of Joshua Considine dated 19 August 2002.
EXH	VDJC054	Statement of Alison Coad, a police officer with the police communications centre.  Annexed to that statement is the transcript of a 000 call received by the police at about 9.30 pm on 31 July 2002.
EXH	VDJT055	Surveillance logs from 7/8/2002 to 10/8/2002.
EXH	VDJT056	Five CDs of listening device recordings.
EXH	VDJC057	Statement of Sonia Giacomelli dated 2 August 2002.
EXH	VDJTO58	Print-out from PIMS general enquiries as to associates report relating to Michael Wallace.
EXH	VDJT059	Print-out from PIMS general enquiries as to associates report relating to John Tracey.
EXH	VDJT060	Excel spreadsheet relating to call charge records.
EXH	VDJT062	Request documents for call charge information for 3 Filsoll Street.
EXH	VDJT063	Subscriber request e-mail dated 5 August 2002.
EXH	VDJT064	Call charge request and information relating to Michael Hutchinson.
EXH	VDJT065	Call charge request and information relating to Elizabeth Carter.
EXH	VDJT066	Call charge request and information relating to Andrew Considine.
EXH	VDJT067	Call charge request and information relating to Keith Branch.
EXH	VDJC068	Call charge request and information relating to Joshua Considine’s mobile (with original page 2 attached).
EXH	VDJC069	Further call charge and information relating to Joshua Considine’s mobile.
EXH	VDJT070	Call charge request and information relating to Stephen O’Leary.
EXH	VDJT071	Call charge request and information relating to Alan Considine’s mobile.
EXH	VDJT072	Call charge request and information relating to Naomi Wallace.
EXH	VDJT073	Call charge request and information relating to Naomi Wallace’s mobile.
EXH	VDJT074	Call charge request and information relating to Allison Considine.
EXH	VDJT075	Call charge request and information relating to Aaron Anderson’s mobile.
EXH	VDJT076	Call charge request and information relating to Matthew Cotton’s mobile.
EXH	VDJT077	Call charge request and information relating to Jarred Puro.
EXH	VDJT078	Call charge request and information relating to Craig Fenton’s mobile.
EXH	VDJT079	Call charge request and information relating to Bianca Johnston.
EXH	VDMW080	Call charge request and information relating to Michael Wallace.
EXH	VDMW081	Call charge request and information relating to Christine Dal Santo.
EXH	VDP082	Police apprehension report relating to John Tracey.
EXH	VDP083	Page 8 of notes of Steven Parfitt with the name “Andrew James Considine” on top.
EXH	VDP084	PIMS print-out relating to Andrew Considine dated 20 May 2005.
EXH	VDP085	Redacted copy of affidavit of Peter Loch dated 8 August 2002.
EXH	VDP086	Apprehension report relating to Alan Considine dated 19 May 2005.
EXH	VDP087	Redacted copy of tactical operations order for 42 Fuller Crescent with unredacted copy of page 4 attached.
EXH	VDP088	Video recordings (x2) and transcript (x2) of Detective Loch’s interview with Christine Dal Santo on 10 August 2002.
EXH	VDP089	Handwritten statement of Alan Considine dated 13 August 2002.
EXH	VDJJ092	Running sheet result sheets.
EXH	VDP093	Running sheets 50, 59, 77 and 129.
EXH	VDP094	Tactical operations order relating to 25 Clarendon Street, Davoren Park.
EXH	VDP095	Statement of agreed facts.
EXH	VDP096	Case management running sheets 42, 49 and 52.

Legal Principles:

1. In order for the statement made by any of the accused to be admissible the onus is upon the Crown to establish on the balance of probabilities that the statement was made voluntarily.

2. If any of those statements was made voluntarily and was therefore admissible, it would then be necessary to consider whether any or all of them should be excluded from evidence on the grounds of unfairness.

   Voluntariness and Fairness:

3. In Cleland v The Queen[1], Murphy J described the test of voluntariness as follows (at 13):

   Voluntariness.  To be admissible the alleged confessional statement must be voluntary, that is, made by the choice of the accused completely free from any threats or other pressure. It may be a question of classification whether a confession induced by false representations or other trickery is voluntary. In older decisions these were regarded as negating voluntariness (see for example Reg v Johnston; Attorney-General (NSW) v Martin; see also various statutory provisions such as Crimes Act 1900 (NSW), s. 410; Evidence Act 1928 (Vic), s. 144 which treated inducement by false representations as requiring exclusion).

   In Reg v Johnston Hayes J. said:

   ‘ ... that word [voluntary] is to be understood in a wide sense, as requiring not only that the prisoner should have free will and power to speak, or refrain from speaking, as he may think right, but also that his will should not be warped by any unfair, dishonest, or fraudulent practices, to induce a confession.

   Upon this principle it is that, in the tenderness of modern times, Judges have uniformly refused to receive in evidence a confession that has been either certainly or probably procured by a promise of good or a threat of evil; by exciting a hope of reward or a fear of temporal punishment other than that which the law has prescribed for the offence charged. So also a confession will be rejected if it appear[ed] to have been extracted by the presumed pressure and obligation of an [illegal] oath, or by pestering interrogatories, or if it have been made by the party to rid himself of importunity, or if, by subtle and ensnaring questions, as those which are framed so as to conceal their drift and object, he has been taken at a disadvantage, and thus entrapped into a statement which, if left to himself, and in the full freedom of volition, he would not have made. These are cited merely as instances of the several ways in which a confession may be unfairly and improperly procured, so as to deprive it of the character of being voluntary ... ’. (Footnote references omitted)

   [1] (1982) 151 CLR 1

4. In R v Azar[2], Gleeson CJ (then President of the New South Wales Court of Appeal summarised the principles with respect to voluntariness in the following way (at 417):

   [2] (1991) 56 ACrimR 414

   1.    Evidence that an accused has made a statement which contains some admission may not be received in evidence against him unless the Crown establishes that the statement was voluntary.

   2.    In this context the meaning of the word ‘voluntary’ is not self-evident. Having regard to the variety of circumstances that might accompany the making of an admission, or a confession, some of which might be personal to an accused, and others of which might be external to him, and which might affect in one way or another his decision to make the statement, it is not surprising that judicial expositions of the rule have usually been accompanied by an explanation of what is meant by the concept of voluntariness.

   In Ibrahim [1914] AC 599 at 609 there appears the classic statement of the relevant principle:

   ‘It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.’

   In Cornelius (1936) 55 CLR 235 at 245, Dixon, Evatt and McTiernan JJ said:

   ‘At common law no confession is admissible in evidence unless it is a free and voluntary statement. If it is made as a result of violence, intimidation, or of fear, it is not voluntary. It is not voluntary if it is given in consequence of a threat made, or a promise of advantage given, in relation to the charge by a person in authority, as, for instance, an officer of police.’

   In McDermott (1948) 76 CLR 501 at 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. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: per Cave J in Thompson. The expression `person in authority' includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (Ibrahim; Voisin [1918] 1 KB 531). That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject.’

   In Lee (1950) 82 CLR 133 at 149 the High Court said:

   ‘The word “voluntary” in the relevant connection does not mean “volunteered”. It means “made in the exercise of a free choice to speak or be silent”.’

   It is the references in the cases to ‘free choice’ that have apparently inspired the argument for the appellant in this case.

   3.The simplicity of words such as ‘in the exercise of a free choice to speak or to remain silent’ can be deceptive. There are many situations in which a person who makes an admission, if left uninfluenced by other persons or considerations, would not have done so. It does not follow that a statement made in such circumstances is involuntary. People speak under all manner of constraints, and impelled by all manner of influences, and the meaning that a psychiatrist or a philosopher would attach to the concept of free choice in this context is not necessarily the same as that which a lawyer would give it.

5. After discussing a number of cases and articles which considered this question, Gleeson CJ went on to say:

   7.There is authority for the proposition that what will render a confessional statement involuntary must be some factor external to the accused, although, obviously, the operation of that factor will usually need to be judged by reference to matters personal to the accused. In Collins (1980) 31 ALR 257 at 307, Brennan J said:

   ‘The ultimate question is whether the will of the person making the confession has been overborne, or whether he has confessed in the exercise of his free choice. If the will has been overborne by pressure or by inducement of the relevant kind, it does not matter that the police have not consciously sought to overbear the will. ...

   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.’

   It is unnecessary for present purposes to consider whether there might not be some circumstances in which the personal condition of an accused will alone be such as to render a statement involuntary: cf Ward (1979) 44 CCC (2d) 498. It suffices to say that, usually, the inquiry is as to some matter external to the accused.

   8.It is also important to note that what is involved is an inquiry as to the accused's will, rather than as to the accused’s state of knowledge, including knowledge of his legal rights. What a person knows or does not know may be relevant, as an evidentiary fact, to the question whether the person's will has been overborne, but knowledge or belief, on the one hand, and will, on the other hand, are different concepts.

   9.There is no justification for the proposition that a statement is voluntary in the relevant sense only if the maker of the statement was aware, at the time it was made, that the law offered a choice between speaking or remaining silent. Admissions are frequently made by accused persons, often to persons other than police officers, and sometimes to police officers, in circumstances where the maker of the statement is uninterested in, and unaware of, the legalities of the situation. …

6. He went on to say:

   10.On the other hand, a person's awareness, or lack of awareness, of his right to silence may be of practical or evidentiary significance if an issue arises as to whether the person’s will has been overborne, for example, by police officers in the course of questioning. Whilst the failure of police to caution a suspect before questioning is often relied on as a reason for rejecting evidence of admissions on the grounds of unfairness, it may also be of factual relevance to the question of voluntariness: Banner [1970] VR 240 at 247; Van der Meer (1986) 35 ACrimR 232 at 237. Just as the fact that a person is mentally handicapped may be of relevance to an argument that his will has been overborne, so also the fact that a person is unaware of his legal rights may, in combination with other facts and circumstances, be relevant to such an argument. However, mentally handicapped people can make voluntary admissions (Sinclair (1946) 73 CLR 316) and so can people who are unaware of their legal rights.

1. Gleeson CJ concluded in Azar that the appellant’s lack of awareness of his right to silence did not of itself prevent the statements being made voluntarily and upheld the trial judge’s conclusion that the appellant’s will had not been overborne.

   The need for a caution:

2. In this case, the defence argued that each of the accused was a suspect at the time of his interview with the police and should have received a caution before speaking to any of them.  The failure to administer that caution rendered the statement of each of the accused involuntary and therefore inadmissible.  Alternatively the circumstances in which each of those statements was made were such as to require the relevant statement to be excluded on the grounds of unfairness.

3. In R v Dolan[3], King CJ discussed the question of when the obligation arose for a police officer to caution a suspect.  He said (at 504-505):

   The cautioning of a suspect that he is not obliged to answer questions, is the offspring of the rule rendering inadmissible in evidence confessions which have not been made voluntarily. It is also related to the discretion which a trial judge has to exclude evidence, including confessional evidence, if the admission of that evidence would be unfair to the accused. The caution tends to negative any suggestion of involuntariness or unfairness. The omission of the caution in circumstances in which it ought to be given, is not decisive as to the voluntariness of the confession nor of the fairness of admitting evidence of it. The judge must decide those issues by taking all relevant circumstances into account including the omission to administer the caution.

   The questioning of a suspect who is under arrest or who is otherwise in custody, tends naturally to the conclusion that he is not acting in the exercise of free choice in answering the questions. In such circumstances the caution is virtually an indispensable condition of the admissibility of the answers. The need for the caution is almost as compelling where, although the arrest has not actually been made, the police officer has decided to make the arrest. There are many cases which have insisted on the need for caution in these circumstances. I refer only to R v Williams (1976) 14 SASR 1 especially at 4-5 where Wells J cites a passage from the judgment of Cullen CJ in R v Currie (1912) 29 WN (NSW) 201.

   [3] (1992) 58 SASR 501

4. And further (at 505-511):

   It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution.  At that point there can be no question of involuntariness or unfairness arising out of omission of the caution.  It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions.  This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audiovisual tape.  Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.

5. In the course of his submissions, Mr Peek QC also referred to the comments of Olsson J in the same case wherein he said (at 510-511):

   At the trial counsel for the appellant objected to the admission of the record of interview in evidence, on the basis of the failure of Ackroyd to give a timely caution. It was also submitted that, as a matter of discretion, the record of interview ought to be excluded, having regard to the nature and form of some of the questions asked. Counsel did not specifically advert to the question of whether or not it could be said that the statements made by the appellant at the interview were voluntary. That issue was raised upon the appeal.

   As I read the trial transcript, these submissions were opposed by the Crown on the basis that the obligation of the police officer to administer a caution only arose at the point of time at which the interrogating officer had positively made up his mind to arrest the appellant. As the officer had deposed that this did not occur until the caution was actually given, there was — it was contended — no logical basis for excluding the content of the record of interview.

   The learned trial judge, in effect, upheld the Crown submissions.

   In reviewing this aspect of the case it is convenient, first, to direct attention to the fundamental question of whether or not, in the relevant legal sense, the statements made by the appellant to Detective Ackroyd were voluntary statements. As to this the onus rested fairly and squarely upon the Crown of demonstrating that the statements made were, in fact, voluntary (MacPherson v The Queen (1981) 147 CLR 512).

   The classic statements of the law bearing upon voluntary and non-voluntary statements are to be found in McDermott v The King (1948) 76 CLR 501; Cleland v The Queen (1982) 151 CLR 1 and R v Lee (1950) 82 CLR 133.

   These authorities hold that a confessional or potentially incriminating statement made to a police officer out of court by an accused person may not be admitted in evidence against him upon his trial unless it is shown that such statement has been made in the exercise of his free choice. The choice in question is that of a free choice to either speak or be silent. If the statement is the product of circumstances in which, despite the fact that there has been no apparent direct duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it nevertheless appears that the person interrogated felt obliged to answer, then the Crown onus may well not have been discharged.

   As was said by King CJ in R v Hallam (1985) 42 SASR 126 at 135, it is possible to envisage cases in which removal of a free choice may, in a practical sense, clearly derive from the very pressures stemming from the situation in which a person may have been placed by actions of the police.

   In the instant case it was put to this Court that the practical situation in which the appellant found himself was that, having gone to the police station without really knowing the basis of the request for him to do so, he was taken to an interview room and, literally, simply given the choice of submitting himself to a video interview or one which was based on the traditional manual recording of the discussion. The Crown signally failed to demonstrate that it was, at any stage, made clear to the appellant at the outset that he was not required to submit himself to the process in question at all, nor did it appear that Ackroyd had indicated at the outset precisely what the interview was to be about. The opening questions confirming that the appellant was not under arrest did nothing to abate that situation. Moreover, there was positive evidence that he was in a nervous and apprehensive state of mind upon arrival at the police station. (emphasis added)

   It seems to me that the approach of the police officers in this case left a great deal to be desired; and that there is a strong basis for concluding that, in the relevant sense, the answers given by the appellant to questions asked of him prior to the caution being administered were not voluntary. The impression with which he seems to have been left was that he had no real option but to submit himself to some form of interview.

6. The emphasised section in the above passage from the judgment of Olsson J was relied upon by Mr Peek as being particularly applicable to the circumstances in which Tracey gave his statement to police on 10 August 2002. 

7. It is now well established that once the accusatorial stage of the investigation has been reached, a police officer is obliged to caution a suspect before embarking upon an interrogation.  In The Queen v Szach[4], King CJ said (at 582):

   … In conducting that investigation the police were entitled to put questions to any person, whether suspected or not, from whom useful information might be obtained (Rule No 1 of the Judges’ Rules). The duty of the police as to the manner of conducting such an inquiry is referred to by Street J (as he then was) in Reg v Jeffries (1947) 47 SR(NSW) 284 at 313-314 in a passage quoted with approval by the High Court in The King v Lee (1950) 82 CLR 133 at 155:

   ‘The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission. But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to admissibility of such evidence.’

   In making their inquiries the police were entitled and, indeed, would be expected, to employ all legitimate investigatory skills. These include the skills relevant to conducting inquiries by means of putting questions in a way likely to elicit the truth. Very often a skilful inquiry will involve the non-disclosure of information known to the police. The police are not obliged to disseminate information in their possession. Frequently the prospects of the success of their inquiries would be enhanced by non-disclosure and damaged by disclosure. The truth may emerge when a suspect under questioning imparts information, already known to but not disclosed by the police, which could only be known to the suspect if he were the culprit.

   Such legitimate investigatory tactics are not to be confused with falsehood or dishonest trickery. Honesty is to be demanded of the police and other law enforcement agencies at all times. Falsehood, express or implied, and dishonest trickery must always bring the condemnation of the courts however worthy the ends sought to be achieved by such methods.

   [4] (1980) 23 SASR 504

8. And further (at 583)

   A stage may come, moreover, in the course of police inquiries when some degree of disclosure is requisite. If the investigation proceeds successfully, it will reach a stage at which the police are satisfied about the nature of the crime which has been committed and believe that it was committed by a particular person. It then becomes necessary to interrogate that person, with a view to laying the foundation for charging him with the crime unless in the course of the interrogation he is able to exonerate himself. I think that at the stage of commencing such an interrogation, the dictates of fairness differ from those applying to the earlier stage of the investigation. The focus of the investigation has changed. The investigation has passed beyond the stage of merely putting questions with a view to eliciting useful information. It has hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself. The requirements of fairness change in accordance with the changed situation. While the police are merely seeking information, fairness involves no more than that the questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires and that his answers be faithfully reported. When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his rights to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position. Fairness to the suspect, in those circumstances, requires that he be made aware of the nature of the crime concerning which he is to be interrogated. These considerations led White J to exclude confessions in Reg v Fieldhouse (1977) 17 SASR 92 and Reg v Hart (1977) 17 SASR 100. I think that fairness may often require that the suspect be told the nature of the crime under investigation at an earlier stage than that at which the investigating officer is required to give the caution. (emphasis added)

9. In Van der Meer v The Queen[5], Mason CJ discussed when a caution should be given (at 661):

   In reaching the conclusion that there was no impropriety in the interrogation of the applicants the trial judge overlooked the well-established constraints that apply to the interrogation of suspects. The common law balances (a) the need to allow the police freedom of action in the investigation of crime in order to ascertain the wrongdoer and (b) the need to ensure that a suspect is fairly treated and his right to silence protected. This balance is achieved by permitting the police to conduct a general inquiry into an unsolved crime until the stage is reached when the accusatory stage begins. It is notoriously difficult to define the point at which that stage begins because there is an infinite variety of fact situations. The Judges’ Rules endeavoured to meet this problem by imposing restrictions on police interrogation by reference to the occurrence of three events in the course of an investigation. They were: (1) when a police officer made up his mind to charge the suspect with a crime (Rule 2); (2) when a suspect was taken into custody (Rule 3); and (3) when a suspect was formally charged (Rule 8). The occurrence of any one of these events may be taken as marking the beginning of the accusatory stage when the giving of a caution is required: see Teh, ‘An examination of the Judges’ Rules in Australia’, (1972) 46 Australian Law Journal 489 at 493. And in one other situation at least the obligation to give a caution will arise earlier. For example, when the police have sufficient evidence in their possession to justify a charge, even if they have not decided to charge the suspect. (emphasis added)

   [5] (1988) 62 ALJR 656

10. The emphasised passages from each of the decisions cited above were, on the Crown case, applicable to the circumstances in which each of these accused was interviewed by the police.  The prosecution say that the investigation into Stuart Watson’s death was still proceeding at the time of the respective interviews, the police were still gathering information and had not reached the point at which a caution would have been required. 

11. The matter is, however, far from straightforward.  In R v Murphy[6], the court considered the balance between police freedom of action and fairness to an accused.  The court discussed Van der Meer and Dolan  and although ultimately holding there was no unfairness in the circumstances of that case, held that the principles set out in Van der Meer and Dolan did not exhaust the requirements of fairness.  The Court considered these requirements could not be turned into fixed categories, and that there might be cases in which a person should be told that he/she is a possible suspect, even though a caution was not given.

    [6] (1996) 66 SASR 406

12. Doyle CJ (with whom Perry and Olsson JJ agreed) said (at 412):

    Because the ultimate question is one of unfairness, in the sense of unfairness arising from the use of answers in evidence, one cannot be dogmatic in the statement of relevant principles. On the other hand, as the passages cited indicate, courts must establish reasonably clear principles or guidelines which can be applied in practice by police officers. The passages cited indicate that the commencement of the accusatory stage marks a point at which a caution must be given. The presence of reasonable grounds to suspect a person indicates that that stage has been reached, even if the police have decided not to charge the suspect: Van der Meer (at 661), col 1 D-F, per Mason CJ; R v Dolan (at 513) per King CJ. There may be, of course, other indications.

    I am prepared to accept, as counsel argued, that these principles also should not be regarded as exhausting the requirement of fairness. Accordingly, it was argued that in this case the police should at least have told Mr Murphy that his possible involvement was being investigated, even if a caution was not called for. I accept that there may be cases in which a person being questioned should be told that he or she is a suspect or possible suspect. …

13. And further (at 414):

    I accept that the requirements of fairness are not to be turned into fixed categories, and that what was said by Mason CJ in Van der Meer and by King CJ in R v Dolan does not state exhaustively what may be required if fairness is to be observed. In a particular case it might be necessary for a police officer who is questioning a person, not a suspect, to bring to that person's attention the fact that his or her possible involvement is under consideration. That might be necessary if, for some reason, the person is at a disadvantage because his or her attention has been diverted from the significance of the matter under consideration (for example, by shock or by grief or because of an injury), if the person is not aware of the significance of the occasion (for example, if the person thought that the inquiries related to a minor matter only when in fact they related to a serious matter), or if the person is under the impression that the police are making casual inquiries only, or if the person thinks for some reason that there is no need to give careful consideration to his or her answers. In such a case fairness might well require the police, in one way or another, to alert the person to the fact that the questions being put relate to a serious matter and that they will include matters relevant to the possible involvement of the person questioned.

14. This was the subject of further discussion in R v Bueti; R v Morrissey[7].  In Bueti, Doyle CJ (with whom Lander and Bleby JJ agreed) discussed the issue of voluntariness and said (at 376):

    The onus lay upon the prosecutor to show that the statement made at the police station was made voluntarily. That means, in the exercise of a free choice. That requires a consideration of the circumstances in which Mr Bueti was placed: see R v Hallam (1985) 42 SASR 126 at 135. It is not simply a matter of considering whether there were threats made or inducements offered.

    And (at 378):

    Although the test of whether there are reasonable grounds to suspect a particular person is expressed in objective terms, the existence of such grounds must depend, to some extent, on the view taken by the relevant police officers of the information provided to them

    [7] (1997) 70 SASR 370

15. Thereafter, Doyle CJ discussed the issue of unfairness and said (at pp 378 to 379):

    I accept that the police officers were not intending to question Mr Bueti with a view to ascertaining whether he had an answer to an allegation made against him, and with the intention of charging him if he did not. Nor were they treating him as a definite suspect. But they were intending to, and did, undertake a reasonably thorough interview of him on matters that would touch upon a possible commission on his part of an offence. In the light of what the detectives had been told, the detectives were intending to explore a topic through which ran a rather fine line dividing innocence from guilt. Another way of expressing the matter is to say that on the information provided by Mr Bueti, the police had sufficient evidence to charge him with an offence if their belief about his intention, when communicating the relevant information to Mr Morrissey, were to alter.

    I consider that under those circumstances fairness did require that a caution be administered to Mr Bueti. I consider that fairness required that he be informed that although he was not at that time suspected of involvement in the offence, his possible involvement remained under consideration and that in that context he should have been informed that he was not obliged to answer questions if he did not wish to do so.

    However, although in my opinion a caution should have been administered, it is also my opinion that this is a case in which the discretion should clearly have been exercised in favour of the admission of the evidence of the interview, despite the failure to administer the caution.

    First of all, there was no deliberate unfairness by the detectives concerned. Their attention was focussed upon involvement in the robbery itself, but in any event they did not consider that Mr Bueti had been involved in the preparation for the offence. Their only error was to fail to appreciate the significance of the fact that they were going to further explore what Mr Bueti had, out of his own mouth, identified as a fairly fine line between innocence and guilt. There was, therefore, no question of taking advantage of Mr Bueti in this case.

    But the main consideration in the exercise of the discretion must be the effect upon Mr Bueti of the failure to administer a caution. I accept the finding of the trial judge that Mr Bueti was anxious to distance himself from the offence, and to explain his minor role in events. I have already accepted the judge's finding that Mr Bueti went to the police station voluntarily and answered questions voluntarily. There is no reason to think that, had a caution been given, he would not have continued to answer questions. It is also the case that what he said in the recorded interview did not add a great deal to what he had already said to the detectives at his home. Moreover, as appears from his examination in chief, what he said to the detectives in interview was the substance of his defence at the trial.

    I can find no unfairness at all in the use of this evidence at the trial, and for that reason I would reject this ground of appeal.

1. Bueti was further discussed in R v Bondareff, Usachov and McCabe[8].  In that case, the appellant was spoken to by police in a police car without a caution being administered.  Mullighan J (with whom Olsson and Duggan JJ agreed) said (at 369-370):

   In R v Bueti; R v Morrissey (1997) 70 SASR 370 at 378, Doyle CJ, with whom the other members of the Court agreed, held that fairness required that a caution be administered even though the person to be questioned was not regarded as a suspect but his possible involvement in the crime remained under consideration.

   In this sense, the statements of McCabe in the police car must be regarded as involuntary and should have been excluded. At all events, I think that even if it could not be said that the statement was involuntary, it should have been excluded in the exercise of discretion on the ground that, in the circumstances, it would be unfair to use it against him. There is no doubt that such a discretion exists: Stapleton v The Queen (1952) 86 CLR 358 at 375-376; R v Conley (1979) 21 SASR 166; R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 at 128; R v Murphy (1996) 66 SASR 406. It may be regarded as an unguarded statement following a question asked with the intention of obtaining evidence for a forensic purpose.

   Mr Millsteed QC argued that even if there was no caution, McCabe was well aware that he did not have to answer police questions. As has been seen, he had been cautioned many times and, in relation to this matter on 9 December 1997, he had exercised his right and had declined to answer questions. He cited R v Bailey [1958] SASR 301 where evidence of incriminatory statements about a murder were admitted when the only caution had been given earlier when the suspect was questioned about another offence. In that case the Court concluded that the circumstances did not reveal unfairness. However, as the law has developed since that case, I do not think that the failure to caution a person who has been arrested may be overlooked merely because some months earlier a caution had been given or the person arrested was aware that he did not have to answer questions. In my view, the evidence as to what was said in the police car should have been excluded. I would have reached the same conclusion even if Wallington had cautioned McCabe after handcuffing him because such a caution could not be said to relate to the question asked in the motor car.

   [8] (1999) 74 SASR 353

2. In R vLoader[9], Mullighan J said [76-78]:

   Should I have made a finding that Detective Eichner did have the required state of mind, although Detective Rowney did not, the police could not organise themselves so that it allocated the task of interviewing the accused to a person who did not have reasonable grounds for suspecting the accused so as to avoid the need to give a caution.

   The rules are designed to protect an accused person from unfairness and the rights of the accused cannot be compromised by the manner in which the police organise their tasks.

   An aspect of this argument was discussed by Wells J, the trial Judge, in Szach: see 546-548 and 553-554. It was not necessary for him to resolve it but it is clear from his observations that there cannot be a concept of constructive or imputed knowledge on the part of all police officers involved in the same investigation. Whether there is unfairness to a person the subject of an investigation because he is questioned by a police officer who does not regard him as a suspect but other police officers do so regard him, must be determined upon the factual circumstances of the particular case. …

   [9] [2003] SASC 16 (unreported)

3. In R v Kamleh (No 2)[10], Gray J said (at 6):

   A caution may be required even though there is no belief by those conducting the interview that the person being interviewed was involved in the offence. Whether or not a caution should be given will depend upon the weighing of the information possessed by the police and their belief about the status of the person being interviewed.

   [10] (2003) 226 LSJS 4

4. He then referred to the relevant test as being that set out by Doyle CJ in R v Bueti (supra at 378) cited above. 

5. Against the background of these authorities it was necessary to examine the course of the investigation into the killing of Stuart Watson on 31 July 2002, leading up to the interview with Wallace which was the subject of the application for exclusion.  I should mention that, although the interviews with Tracey and Wallace took place on 10 August 2002, and the interview with Joshua Considine on 15 August 2002, none of the accused was charged with Stuart Watson’s murder until 15 January 2003.

   The Police Investigation:

   Wednesday, 31 July 2002:

6. The shooting death of Stuart Watson occurred at 3 Filsoll Street, Elizabeth Downs at about 9.30 pm on 31 July 2002.  It appeared that earlier that night there was a disturbance at that address and that at about 7.30 pm, Senior Constable Giacomelli, who was on mobile patrol, was tasked to that address in relation to property damage.  She was accompanied by Probationary Constable Rast.  The tasking information was that a group of males had attended at that address, one of whom was holding an iron bar, and a window had been smashed.  The owner of the home was Elizabeth Considine.  Giacomelli spoke to Keith Branch (incorrectly referred to as Grant in Giacomelli’s statement) who was visiting his child and Elizabeth Considine who was his ex-partner.  A man later identified as Troy Murray was also present.  Branch said that four unknown males had been outside the front door when he opened it.  He shut the door and thereafter heard a loud smashing sound which was the front window being smashed.  He could not identify any of the men nor did he see who smashed the front window. 

7. Details for an incident report were obtained from Elizabeth Considine.  Giacomelli observed two vehicles parked in the driveway, namely, a blue Sigma Mitsubishi sedan as well as a white VK Commodore sedan, which she said had a large sticker on the back window.  She did not obtain registration details for these vehicles.  Giacomelli and Rast then left the premises.

8. At about 9.30 pm, the police communications centre received a 000 telephone call from a woman who identified herself as Naomi Wallace from Gawler.  She asked for police assistance at 3 Filsoll Street.  She said “I think someone has been shot or something.  I don’t know, my brother’s … um sister just rang me and she’s really scared and she just told me to get the police quickly”.  She said her sister’s name was Rebecca.  The call ended at about 9.35 pm (Exhibit VDJT054).

9. Following the shooting, Stuart Watson was taken to the Lyell McEwin Hospital.  Scutchings went to the hospital at about 10.16 pm.  Scutchings spoke to Watson’s parents as well as a number of other people.  Scutchings remained at the hospital until such time as advice was received that Stuart Watson’s condition was deteriorating and he was to be transferred to the Royal Adelaide Hospital (RAH).  Scutchings then escorted the ambulance conveying Watson to the RAH.

10. At about 11.30 pm O’Donohue was recalled to duty at Major Crime.

    Thursday, 1 August 2002:

11. In the early hours of the following morning, ie at about 12.21 am, at the RAH, Scutchings was advised that Stuart Watson was deceased.  Scutchings then took an identification statement from his mother, Joy Watson and a statement from his brother, Stephen Watson.

12. At about 2.30 am, O’Donohue attended a briefing held in the vicinity of 3 Filsoll Street, Smithfield, and was provided with a brief overview of what police believed had happened from Detective Sergeant Simon Carpenter.  O’Donohue said that by this stage police knew that the victim’s name was Stuart Watson and his address and that there had been an altercation between Troy Murray and a woman named Elizabeth Carter who lived somewhere in Brady Street and a girl named Rebecca.  Later in the day there had been a smashing of windows at 3 Filsoll Street and fighting.  O’Donohue noted at that time that one witness had said “Saw gun.  Heard shot in the car.  Parked in Filsoll Street”. 

13. There was subsequently a meeting at the Elizabeth CIB office at about 10.30 am on 1 August 2002.  This was attended by Detective Sergeant Linton and O’Donohue.  Loch was also involved in the investigation by this time.  There was a discussion about statements obtained from some occupants of cars who had been in the victim’s group.  There was a description of the shooter’s car.  O’Donohue’s notation was “suspect vehicle: a white Holden Commodore late model with lower suspension and a white logo on back of car”.  When giving evidence, O’Donohue could not recall from whom that information had been received, but she also had noted that the shot had come from a person sitting in rear driver’s seat of suspect vehicle.  Loch described this particular meeting as a general discussion about the statements which had been obtained and information they had about cars attending at the address.

14. That afternoon at about 1 pm, Loch spoke to a witness called Scott Schultz.  He spoke to Schultz again on 4 August 2002.  Schultz provided a description of the car, ie “white Commodore sedan, not sure about sticker and middle back window, VL-VR model, appeared to be in good condition”.  Loch said he also looked at door knock forms that had been gathered during the night of 31 July.  At 3 pm there was a further discussion about the status of the investigation as police now had information in relation to a white Commodore that had been seen at the scene of the shooting.

15. Scutchings came back on duty in the afternoon and he assisted by conducting a series of door knocks and speaking to neighbours in the vicinity of the incident, some of whom recalled having heard a brawl.  Scutchings did not, however, obtain any information which could identify possible offenders, although he recalled having some information which caused him to note “VH Commodore - cream”.  He was, however, unable to say who had provided that information to him.

16. That evening at 8.52 pm at the Elizabeth police station, Scutchings took a statement from Bronwyn Rees.  This statement assumed some significance in the context of what later occurred in Scutchings’ interview with Tracey.  Rees told Scutchings that she “… would describe the male person hanging out of the window as having long sandy brown coloured hair with a ponytail” (Tr 929).

17. It also appeared that on this particular day, Vicki Ramm, who was then acting field intelligence officer, submitted a request for call charge records with respect to Troy Murray of 3 Filsoll Street (Exhibit VDJT061) and Mark Bracegirdle of 5 Filsoll Street (Exhibit VDJT062)

    Friday, 2 August 2002:

18. At 11.05 am, Elizabeth Carter attended at the Elizabeth police station with a friend and Nelson obtained a statement from her.  She relayed information obtained from a woman called Wendy Clarson that the shooter had been wearing a button up shirt with a white Bonds t-shirt underneath.

19. At 12.20 pm a further meeting took place at the Major Crime conference room.  This meeting included Chief Inspector McEvoy, Linton, Polacek, O’Donohue, Loch, Nelson and Parfitt.  Parfitt had replaced Ramm as the field intelligence officer.  It was apparently arranged for O’Donohue to be partnered with Loch and Polacek (who had now come into the investigation) with Nelson.  There was a general discussion about the evidence that had been obtained to that date and an overview of what was alleged to have occurred.  The was also a discussion about what further statements were required.  The possibility that the weapon used in the shooting was a .22 magnum was also discussed at this meeting.  Following the meeting, Parfitt apprised himself of the statements which had been obtained to date which included the description of a Commodore sedan having been involved in the shooting, and the possible offender involved.

20. At about 4.45 pm O’Donohue, Polacek, Loch and Nelson went to 249 Hogarth Road, Elizabeth, to speak to Keith Branch and Elizabeth Considine, as they had both been at 3 Filsoll Street on the night of the shooting and were considered to be prospective witnesses.  As the police arrived at 249 Hogarth Road, they saw a car leaving that address and someone noted that one of the occupants in it had a ponytail.  O’Donohue said that they were aware that witnesses had seen someone with a ponytail holding a gun from one of the cars, so they were interested in people with ponytails.  They therefore followed the car and pulled it over.  Loch and Nelson spoke to the driver and O’Donohue and Polacek spoke to the passenger.  The passenger identified himself as Andrew Considine of 25 Clarendon Street, Davoren Park.  The police considered Considine to be a person of interest as he had a ponytail and he had a connection with 3 Filsoll Street as he was a relative of people involved.  He was therefore asked about his movements on the Wednesday night/Thursday morning.

21. Polacek said that he considered Andrew Considine to be a person of interest but not a suspect as the basic description of the person with a ponytail would have fitted a lot of people.  That was, however, something to follow up.

22. The police subsequently subsequently returned to 249 Hogarth Road.  There was, however, some confusion about what time they went there, as O’Donhue said they returned at 5.45 pm, whereas Loch said 7.45 pm, but I do not consider anything turns on this discrepancy.  In any event, it was intended that O’Donohue and Loch would obtain a statement from Elizabeth Considine, and Polacek and Nelson would take a statement from Keith Branch on the basis that Branch had been at 3 Filsoll Street on 31 July and police needed to find out more information about movements of vehicles and persons and what he knew.

23. Branch told police that his car was the only one in the driveway in the afternoon and evening.  Polacek said that at that stage he accepted that as being true, and even upon police becoming aware of that contrasting with Giacomelli’s statement, it did not raise any suspicion in his mind.  He said he was not sure if he had information at that stage about a white Commodore having been at 3 Filsoll Street earlier in the evening on 31 July and he was not sure if he had seen the statement of Giacomelli before taking the statement from Branch or speaking to another witness called O’Leary.

24. Polacek said the police accepted that Branch’s version was plausible but, the versions of everyone from whom they took statements at this early stage, needed to be explored.

25. When police returned to the Elizabeth police station, Nelson conducted checks on the home address which had been given by Andrew Considine.  This did not reveal any names of the three accused.  Nelson also did a check on Troy Murray to try to identify other possible addresses for him.  Troy Murray was still a person of interest at this stage.

    Saturday, 3 August 2002:

26. Further door knocks were conducted.  O’Donohue also obtained a further statement from Robert Edwards and Polacek obtained a statement from Leigh Farrell and “Little Mark”.  They also observed the scene and surrounds and noted that a bullet had grazed a tree in the nearby park.  Ballistics attended.  There was no further information about the offender but Andrew Considine continued to be a person of interest but could not be connected to the car described as being involved in the shooting. 

27. According to Nelson, the information available to them at that stage was still limited to the shooter having a blond ponytail and a car at the scene being a white Commodore.

    Sunday, 4 August 2002:

28. Nelson obtained a statement from Elizabeth Carter.  She said that she saw a white Commodore in the driveway of 3 Filsoll Street on the evening of 31 July 2002, before the shooting.  An addendum declaration was also obtained from Wendy Clarson but that did not provide any further information to assist in identifying the assailant or the vehicle.

29. At 11.55 am, Polacek attended at 12 Brady Street, Elizabeth Downs and obtained a statement from Stephen O’Leary.  Polacek wrote the statement out by hand (Exhibit VDJT049).  Polacek said O’Leary said to him (Tr 1006):

    At about 9 or so, I was outside getting the local paper and spoke with Josh – Liz’s son, 3 Filsoll, met before.  He said can you keep an eye on my mum’s house, if anything sort of happens give me a ring.  Wasn’t going.  He gave me a phone number […].  …- arrived not long after breaking glass, I was with Tom and Duncan in my front yard.  At about 6.30 I was out the front locking the car up …

30. Polacek did not think at that stage he knew who “Josh” was but when he returned to the office he gave the mobile number to Parfitt to follow up.  Polacek said he did not recall making any connection between Joshua Considine and the white Commodore at that stage.  The time of the earlier incident referred to in O’Leary’s statement was different from the later incident and he had no evidence that the two were connected.

    Monday, 5 August 2002: 

31. At 9 am there was a further briefing.  This was attended by Detective Senior Sergeant Strange (who was taking over the administration of the case from Linton), O’Donohue and Polacek.  There was a further run-down on the evidence.  At this stage, the main line of enquiry was to try to establish what white Commodore had been used in the shooting.  Due to the information that there had been a white Commodore parked in the driveway of 3 Filsoll Street, during one of the earlier altercations, police wanted to identify that vehicle.

32. After that briefing, O’Donohue, Strange and Polacek went to 3 Filsoll Street to meet with people from ballistics and crime drafting.  Thereafter, the police re-attended at 249 Hogarth Road to try to find Rebecca Considine and Troy Murray to go through their statements but they were not there.  According to Polacek there was still no-one to focus on at that stage and Andrew Considine was still being looked at.

33. Parfitt, in the meantime, was conducting various checks on phone records in relation to the investigation.

    Tuesday, 6 August 2002:

34. At about 7.40 am, as Nelson was travelling to work, he sighted a white Commodore on Phillip Highway.  He followed it to an address at Salisbury and took the registration number.  The car had a large white sticker in the middle of the back window and was similar to the description given to police by witnesses of the car involved in the shooting.  Upon arrival at work, Nelson conducted checks on the vehicle and identified the registered owner at a Davoren Park address. 

35. At about 11 am, Nelson contacted Rast about his attendance at 3 Filsoll Street on the evening of the 31 July 2002.  Rast then provided a description of the white Commodore that he had seen in the driveway at about 7 pm on that date.  The information was that “it was a white Commodore, possibly a VK, it had a white front grille, lowered, it had alloy rims, which were pretty solid, a loud exhaust, he is not sure if it had a spoiler, and it had a late model badge on bonnet”.  Rast said he saw two people who were “both males, early twenties and both Caucasian” (Tr 1450).  

36. In the course of the day, results of the charge call records and reverse call charge records from No 3 and No 5 Filsoll Street were obtained from the checks made by Parfitt. These revealed calls from 3 Filsoll Street on the night in question to an address at 42 Fuller Crescent, Elizabeth East. This was the home occupied by Wallace and his partner, Christine Dal Santo. Parfitt also conducted a motor vehicle check on vehicles at that address and located a white Commodore.

37. O’Donohue went to 42 Fuller Crescent looking for cars and obtained the registration number of a car at that address as being WMI 881.

38. Checks were also made at Moss Court, Elizabeth East, and 25 Clarendon Street, Davoren Park, both of which addresses related to Andrew Considine.  At Clarendon Street there was a car registered number VJZ 906 parked there.

1. O’Donohue was still trying to locate Troy Murray and Rebecca Considine.  As a result of information that they might be found at 4 Mitchell Street, Davoren Park, O’Donohue attended at that address.  She said Troy Murray was there but not Rebecca.  Murray advised that Rebecca may have been back at her mother’s place, that is, 249 Hogarth Road.  O’Donohue went there but still was unable to locate her.  She left a message she would catch up with her in the next few days.  Murray subsequently went to the Elizabeth police station and was spoken to by Loch and Nelson.

2. At about 4.35 pm, O’Donohue and Polacek checked 42 Fuller Crescent again.  At that time, they observed a white Commodore sedan, registration number UYL 791 parked in the carport.  O’Donohue thought that might be the car that they were seeking as she knew they were looking for a white Commodore and she now knew from the charge call records that calls had been made to 42 Fuller Crescent on the night in question.  It was therefore thought that this might be the car they were seeking as being the one involved in the shooting.  There were, however, quite a few white Commodores in the investigation at that stage.

3. It appears that O’Donohue also accessed the PIMS system that afternoon.  The issue of the information obtained by police from the PIMS system was the subject of detailed cross-examination by the defence.  There was subsequently a statement of agreed facts (Exhibit VDPO95) which includes the following:

   1.Computer logs are kept for the PIMS system.  This means that records exist to track when a police officer accesses certain screens in PIMS.  However, logs are not kept for all screens in PIMS.  In relation to those screens for which logs are not kept, no records exist to track when a police officer accesses them.

   2.The screen PEIE357F is not a screen that is logged.  This screen is the ‘Enquire Co-accused/Assocs’ screen.  This is the screen which corresponds to the screens for Michael Wallace (VDJT[0]58) and John Tracey (VDJT[0]59).  No records exist to enable tracking of whether those screens were accessed in the period from 31 July 2002 to 10 August 2002.  The computer logs therefore cannot assist one way of the other in regard to the question of whether any police officer accessed those screens.

   3.There are other screens in PIMS (apart from the PEIE357F screen) which can refer to associates of a person and which are logged.  These screens include the screen PEIE364F.  This is an ‘Enq[uire] Accused Assoc[iate] Events’ screen.

   4.The computer logs for the PIMS system have been checked for the period 1 August 2002 to 10 August 2002 (inclusive) relating to all inquiries on Michael Wallace and John Tracey.  The only screen accessed during that time which can display associates of those persons was the PEIE364F screen.

   5.There were two accesses to the PEIE364F screen for that period.

   6.It was first accessed by Detective O’Donohue on 6 August 2002.

   At 1512 she made an enquiry to obtain all persons at an address.

   At 1513 a subsequent enquiry ‘Enquire Person Details’ was made for Michael Wallace.

   At 1514 the enquiry ‘Enq[uire] Accused Assoc[iate] Events’ was made for Michael Wallace DOB 0.  This is the PEIE364F screen.  The printout for the screen cannot be provided but a current printout of the screen is attached and marked ‘A’.  The records indicate that Detective O’Donohue did not proceed further with this screen, that is, she did not access any further information on this screen from this screen.

   The next enquiry made By Detective O’Donohue was at 1517.  At that time she made an ‘Enquire on Person Details’ in the name of Alan Considine.

   The next enquiry was at 1518 an ‘Enq[uire] Accused Assoc[iate] Events’ for Alan Considine.

   The next enquiry was at 1519 which was an ‘Enquire on Person’ for Bianca Johnston.

   Then there were some further enquiries made in relation to Bianca Johnston.

   At 1520, Detective O’Donohue made an ‘Enquire on Person’s Address’ which indicated on the screen 8 different names.  Amongst those names were Bianca Johnston and John Tracey.  Detective O’Donohue did not access any screens in relation to John Tracey following that enquiry that day.

4. The balance of agreed facts relating to Loch’s access to the system on 8 August 2002 and other enquiries on the PIMS system appear later in these reasons.

   Wednesday, 7 August 2002:

5. At about 7.40 am on his way to work, Nelson again drove past 42 Fuller Crescent in an attempt to locate the white Commodore.  He saw a white Commodore which appeared to have lowered suspension parked in the carport and took a photograph.

6. When Nelson arrived at work he told Loch that the car was at Fuller Crescent.  At about 9.20 am, Nelson and Loch returned to the address but the vehicle was no longer there.  They then checked addresses obtained from telephone records.  They went to an address at Challiston Road, Munno Para (which was an old address of the mother of Tracey’s partner, Bianca Johnston) but did not sight a white Commodore there.  They then went back to 114 Main North Road, Evanston, where they saw a black Gemini but no white Commodore.  Nelson took a photograph at this address.  They also went past 19 Wilterna Crescent, Smithfield, but there was nothing to report from that. 

7. Nelson returned to the Major Crime office and in the afternoon filled out a request for surveillance (Exhibit VDJT050) which related to the vehicle that had been observed at 42 Fuller Crescent.  Polacek included the following in the request:.

   SUBJECT SURNAME:  DAL SANTO      GIVEN NAMES: CHRISTINE YVONNE

   HOME ADDRESS:      42 FULLER CRESCENT, ELIZABETH EAST,

   VEHICLES REGISTERED TO/USED BY SUBJECT:

   1985 - VK HOLDEN COMMODORE SEDAN, WHITE, UYL 791.

   GENERAL STORY:  ON 31/7/02 A MURDER OCCURRED IN FILSOLL STREET, ELIZABETH DOWNS.  THE OFFENDERS USED A WHITE COMMODORE TO ARRIVE AT SCENE AND DECAMP.  4 MALES* WERE IN THIS COMMODORE AT TIME OF MURDER. 

   INQ’S AND PHONE CHECKS HAVE IDENTIFIED A WHITE COMMODORE REGISTERED TO SUBJECT WHICH FITS DESCRIPTION. 

8. Below that statement is the comment:

   *These subjects are yet to be interviewed or spoken to by police.  Surveillance to be cautious not to compr[o]mise investigation. 

   Nelson said, however, that this comment was written by him and not Polacek and it appears that most of the balance of the forms was completed by Nelson and not Polacek.

9. Under the heading Objectives of tasking, the request states:

   1.      Locate vehicle and photograph from all angles.

   2.      Identify driver/users and photograph.

   3.      Identify any associates.

   4.      Identify locations travelled to - addresses.

10. Thereafter there is an attached form which refers to seven “associates’.  They are:

    Associate 1:

    Joshua Heath Considine
    Home address u/k, possibly 19 Wilterna Crescent, Smithfield.
    Possibly light tanned aboriginal.

    Considine’s name was written on the form by Polacek but the remainder of the information was written on the form by Nelson.  The vehicle description was said to be not known.  Nelson was not sure from where he obtained the Smithfield address but he thought It was possibly something to do with telephone records.

    Associate 2:

    Allan Considine
    21 Bundarra Court, Craigmore.

    The vehicle is identified by Registration number: AA 877; Year: 87; Colour: wh; Make Holden; Model: VS?; Type: S/WI and Owner: A Considine.  All of these particulars were written on the form by Nelson.

    Associate 3:

    Michael Wallace
    42 Fuller Crescent, Elizabeth East.

    This particular form includes a reference to  vehicles “used by Associate”.  It states “Registered number: UYL 791; Year: 85; Colour: Wh; Make: Holden; Model: VK; Type: sedan; Owner: (C Dal Santo) possibility only – believed to be living at her address.  Under Nature of Association the document states: Recorded on PIMS at this address and associates to other POI. 

    Associate 4:

    Andrew Considine
    25 Clarendon Street, Davoren Park.

    Under the heading “used by Associate” is stated “Registered number: UNC 753; Year: 80; Colour: blue/grey; Make: Primer; Model: Ford XD; Type: sw; Owner: UK

    These details were written by Nelson.

    Associate 5:

    Troy Shane Murray
    4 Mitchell Street, Davoren Park.

    No particulars of any vehicles registered to or used by Murray are included.

    Associate 6:

    Rebecca Considine
    4 Mitchell Street, Davoren Park.

    [As was the case with Murray there is no reference to any vehicles registered to or used by her.]

    Associate 7: 

    John Michael Craig Tracey,
    19 Wilterna Crescent, Smithfield.

    Under vehicles registered to/used by Associate appears the following:

    (1)Registered number: UYP 957; Colour: red; Make: Holden VN Commodore; Type: sedan. 

    (2)Registered number: UJY 118; Colour: Wh; believed not driveable.

11. Under “Nature of Association” is the comment “Believed responsible for shooting murder of Watson.  Sometimes stays at units 148–150 Murray Street, Gawler (main street of Gawler – unit number not known)”.  This entry was not, however, included in the form at the time the initial surveillance report was made but was added to it by McMahon on 17 September 2002 following a briefing at the Elizabeth police station.

12. Nelson said that when he filled out the form, apart from the name Joshua Heath Considine he did not have any information linking Considine to Michael Wallace.  He said that he listed a lot of those associates, not necessarily known to Michael Wallace or 42 Fuller Crescent, but those linked to 3 Filsoll Street, as the police still believed that this was a family oriented offence.  He was not sure why 19 Wilterna Crescent was nominated as Joshua Considine’s home address, other than it may have come from the phone records and he was not sure at that stage of where he would be found.  Alan Considine was put on the form as he was a cousin and had links to 3 Filsoll Street.  Michael Wallace was put on the form because he was recorded at 42 Fuller Crescent, and that was the address of the vehicle they wanted to follow.  Nelson said Andrew Considine was on the form because of the blond hair and the ponytail.  Troy Murray and Rebecca Considine were on the form because of their links to 3 Filsoll Street.

13. Although Polacek did not complete the surveillance form, his memory was that surveillance was to be on the white Commodore from 42 Fuller Crescent.  Polacek was not aware of any associates concerning this vehicle at the time of the request other than the two people at that address, ie Michael Wallace and Christine Dal Santo.

14. Polacek said the use of the word “associates” meant that if there was a possibility that a person might be associated with the vehicle, then such a description would help the surveillance people identify anyone that came up as being associated with it.  It did not necessarily mean that a person nominated as an “associate” was necessarily associated with the car or any of those people.  Polacek agreed that under “Associate 1” he had written “Joshua Considine”, but was not sure why he had put it there although it might have been from the O’Leary statement.  He thought that Joshua Considine was possibly an associate of Michael Wallace but he did not know if he definitely was (Tr 1103).

15. Surveillance commenced at 42 Fuller Crescent, Elizabeth East at 5.50 pm on 7 August 2002 with respect to the car, registration number UYL 719, which was the white Commodore registered to Christine Dal Danto.  It continued until 10 August 2002 and re-started on 17 September 2002 (Exhibit VDJT055).

16. It was on 17 September 2002 that McMahon completed the final page of Surveillance Request (Exhibit VDJT050) and included John Tracey as Associate 7.  McMahon said that the subject of the surveillance was Christine Dal Santo and it was her vehicle which was to be under surveillance.  He said the objectives of the surveillance were to locate and photograph the vehicle, ie drivers and users, photograph them and ID any associates and identify locations travelled to and addresses.

17. McMahon said he had been provided with the information relating to Associates 1 to 6 to assist in identifying any possible associates of the subject or address that might be attended.  McMahon said, however, that the concentration was on the main target because that was the object of the request, but if they could not locate the main target they would check other addresses to see if it could be located at any of them.  Part of the intelligence gathering process by surveillance was to establish relationship between the vehicles and the persons as well as persons and premises.

18. On 7 August 2002, Loch started preparing an affidavit in support of an application for a telephone interception at 42 Fuller Crescent.  Polacek, assisted by gathering information from the various statements which had been obtained, although Polacek was not involved in the preparation of the affidavit itself.  In the affidavit (P90), Loch said (inter alia):

    5.    I suspect that Wallace is involved in the commission of a Class 1 offence … namely murder committed at Elizabeth Downs on 31 July 2002 … (emphasis added)

    12.2  Police records examined by me show that Christine Dal Santo of 42 Fuller Crescent, Elizabeth East is the registered owner of a white Commodore sedan SA UYL 791.  Police has (sic) seen this car at 42 Fuller Crescent, Elizabeth East on a number of occasions during the course of this investigation.  This car is similar in description to the white Commodore sedan that attended at Filsoll Street and from which the shots were fired.

    12.3 I have examined records held by SA Police which shows that Wallace is recorded at residing at the address of 42 Fuller Crescent, Elizabeth East.  He has given this service as being his home telephone number.  A person fitting Wallace’s description has been seen at that address and driving the white Commodore sedan.  Records show Wallace associates with Allan Considine.  Allan Considine is known as Alby Sumner.

    12.4  Elizabeth Considine has a brother, Andrew Considine.  Allan Considine is known to be the cousin of Rebecca Considine.  Joshua Considine is known to be the brother of Rebecca Considine and the cousin of Allan Considine. …

    24     At about 5 pm on Friday, 2 August 2002, I saw Andrew Considine leaving the address of 249 Hogarth Road, Elizabeth South.  I spoke to him about other matters.  Andrew Considine is similar to the description supplied by witnesses of the person who fired the shots.  I believe he is the person who fired the shots. …

    27     Police surveillance commenced at 42 Fuller Crescent, Elizabeth East on 7/8/02.  Persons believed to be Wallace and Andrew Considine have been seen at the premises and in the white Commodore sedan SA UYL 791.

19. It is clear from this affidavit that, as far as Loch was concerned, by 7 August 2002, Michael Wallace was a suspect.  Loch said, however, that he could not recall the name John Tracey meaning anything to him at that time, nor did he know any more about Joshua Considine, apart from his being the brother of Rebecca Considine and cousin of Alan Considine, and that he had passed his number on to O’Leary.

20. O’Donohue said that at this stage, she believed there were a number of people involved in the shooting, ie a minimum of three, but did not have any identities.  They did, however, have a line of enquiry with respect to the white Commodore, registered to Christine Dal Santo.  She said there was a possibility that a relative could have been involved but given the circumstances of the crime, it could be commonplace to persons, viz family members or close friends.

21. It was put to Nelson that by 7 August 2002 he had information that a Commodore was involved in the shooting, but he replied in the negative.  He agreed, however, that at some stage, Alan Considine (also known as Alby Sumner) might have been in the car at the time the shots were fired.

    Thursday, 8 August 2002:

22. Polacek was off duty on 8 August 2002.  At about 8 am, however, Nelson received information from the surveillance team that a male driver matching the description of Michael Wallace had been seen in the white Commodore in company with another man with blond hair and a ponytail.  They were followed to a place called Skate FX.  The person in the car with the ponytail was thought to be Andrew Considine.

23. Loch completed the documents required for the telephone interception application for 42 Fuller Crescent.  O’Donohue helped Loch with the application.  She agreed that by this time she considered Michael Wallace to be a suspect, based on the vehicle and the phone calls and the fact that he had been seen driving the white Commodore (Tr 736).

24. Loch agreed that Michael Wallace was a suspect by this time (Tr 1310), based on the vehicle registered at the address being similar to the description of that used in the shooting, and the fact that surveillance reported that the passenger in the car had a ponytail.  It was assumed that phone calls from 3 Filsoll Street were probably to ask for assistance and phone call checks showed that there were calls made from 3 Filsoll Street to Fuller Crescent.  Although the car was registered to Christine Dal Santo, Loch did not think a female could have been the driver of the car, and that is why he suspected Michael Wallace (Tr 1311). 

25. Loch said that in preparing his affidavit he checked recent apprehension reports relating to Michael Wallace and it was in reading one of those (Exhibit VDP086) that he detected an association with Alan Considine, who was a person of interest.  Loch said that he generally did not check the associate screen in PIMS because that did not always show co-accused’s associates.  He did not check that screen for Michael Wallace.  He said that he checked the apprehension and ancillary report instead.  He said that on 8 August he did not know of John Tracey.  The agreed facts relating to the steps taken by Loch to access this information are contained in paras 7-9 of Exhibit VDP095 as follows:

    7.The second access of a PEIE364F screen was by Detective Loch on 8 August 2002.

    At 837 he made an ‘Enquire on Person’ for Michael Wallace.

    At 838 he made an ‘Enquire on Person’s Details’ for Michael Wallace.

    At 838 he made an ‘Enq[uire] Accused Assoc[iate] Events’ for Michaed Wallace DOB 15/5/1977.  This is the PEIE364F screen which replicates the appearance of the screen as at August 2002 to a high level of probability is attached and marked ‘B”.

    The name Shivonne Trace would not then have appeared (since the relevant report post dates August 2002) but the following names would have then appeared.

    ·Robert Gordon Burton

    ·Gregory Wade Holt

    ·Robert Michael Hay

    ·John Michael Craig Tracey

    ·Walter Mark Greenfield

    The records indicate that Detective Loch did not proceed further with that screen, that is, he did not access any further information on this screen from this screen.  In particular, he did not access the Apprehension Report listed against the name of John Tracey.

    8.The next use of the PIMS system recorded for Detective Loch was at 1033 on 8 August 2002.  This was an ‘Enquire on Person’ for Alan Considine.

    9.Detective Loch made some enquiries on PIMS for John Michael Tracey commencing at 1931 on 8 August 2002.  These were ‘Enquire Persons at Address’, ‘Enquire on Person Details’, ‘Enquire AP accused Person’, ‘Enquire on a Person’, Enquire on Aliases’, ‘Enquire on Police Vehicles’.  None of these screens disply information about associates.

26. It appeared, however, that late in the evening of 8 August 2002, Nelson was alerted to the existence of John Tracey.  This was as a result of information received from Parfitt to the effect that he had conducted some checks and had found a person by the name of John Tracey who matched the description of the shooter (Tr 1459).  Nelson believed that Parfitt had managed to link Tracey with Bianca Johnston at the Wilterna Crescent address and had also ascertained that Tracey had a history of violence (Tr 1459).

27. Nelson said that his view was that there were now two persons of interest, namely Andrew Considine and John Tracey but he would have to consider Michael Wallace to be a suspect (Tr 1460).

    Friday, 9 August 2002:

1. At some stage in the course of the day, the telephone interception order was made with respect to the premises at 42 Fuller Crescent.

2. At 9.30 am, a meeting took place at Major Crime which was attended by Strange, Polacek, O’Donohue, Nelson and Loch, as well as Detective Superintendent Symons (who was the new acting officer of Major Crime).  Parfitt attended the meeting at a later time.

3. At this meeting, there was discussion about there being a “raid” at three addresses, namely, 42 Fuller Crescent, 25 Clarendon Street and 19 Wilterna Crescent.

4. Loch said that by the time of this meeting he knew about John Tracey and that he was connected to 19 Wilterna Crescent, Smithfield.  Loch said that he was aware that Tracey was described as having a ponytail.  He said that in his mind the position of John Tracey in the investigation was (Tr 1316):

   I wasn’t 100% certain that he lived at 19 Wilterna.  Our records show that he was connected to that address.  Our records also showed a phone call to 19 Wilterna and because of his predisposition of violence – looking at it, he may have a ponytail, he was with another person now with a ponytail, so he became a person of interest. 

5. Loch said Andrew Considine was still a person of interest and his address was also discussed.  Loch said that at the briefing on 9 August 2002, the intention with respect to 42 Fuller Crescent was (Tr 1317) “To attend at that address, seize the vehicle, search for any evidence which could link the person to the shooting and also work out who he is associated with”.  He said at that stage the suspect for the shooting was Michael Wallace.  Loch said it was hoped to speak to Andrew Considine at 25 Clarendon Street, Davoren Park to find out what he knew in relation to what happened on the night of 31 July 2002.  Loch said there was also discussion as to whether they could search that address to locate evidence to try and connect him to the shooting murder but they had nothing to connect him to the car.  It was decided that if he gave consent they would go through his house and look at it.

6. Loch prepared the tactical operation order for 42 Fuller Crescent (Exhibit VDP087).  A redacted copy of that order contained the following comments: “Execution: 9 am 10/8/02 to attend at 42 Fuller Crescent, Elizabeth East.  Seize the suspected vehicle involved in the murder, the white VK Commodore sedan, SA UYL 791.  To search the address and interview Wallace, Dal Santo and any other associated persons who are at the premises at the time”. 

7. Under the heading “Tactical Plan”, it is stated:

   It is proposed to attend at 42 Fuller Crescent, Elizabeth East.  The address will be searched for firearm and any evidence that may exist to the involvement in the murder and any knowledge or interaction of persons of 3 Filsoll Street, Elizabeth Downs.  The premises will be searched under the provisions of a general search warrant.  The white Commodore sedan SA UYL 791 is to be seized and taken to the Ottoway police compound for examination by PES.  The chain of evidence is required.  Two members will interview Wallace and Dal Santo each, the other members in the other information involved to conduct the proposed search.  All items the subject of this operation shall be seized, handled with accordance to SAPOL general orders and handed to the exhibits officer.  These exhibits to be lodged at the appropriate facilities by the exhibits officer.

8. Under a further heading “Background information re operation” it is stated:

   The murder occurred as a result of groups that included Stuart Watson attending at 3 Filsoll Street, Elizabeth Downs and intimidating Troy Murray and Rebecca Considine who frequent that address. Witnesses of the shooting murder at Filsoll Street, Elizabeth Downs have identified a car, that had a person inside it, with a gun.  It is suspected that person has used the gun and murdered Watson.  Investigations have identified the suspected vehicle at this address.  It has associated the person Michael Wallace who resides at that address, to the persons Murray and Considine. 

   Immediately thereunder appears a further handwritten comment believed to be written by Strange:

   Further believed this same vehicle was parked in driveway at 3 Filsoll Street about 7-7.30 pm.

9. O’Donohue said that the topic of suspects was not discussed at this meeting, although in her own mind, as a result of having assisted with the telephone intercept order, she believed Michael Wallace to be a suspect (Tr 760). 

10. O’Donohue started preparing the tactical operation order relating to 19 Wilterna Crescent, Smithfield (Exhibit VDJT045), although it was completed by Nelson.  That document specifies the time and date of operation as Saturday, 10 August 2002 and further includes:

    Situation:

    A search of 19 Wilterna Crescent, Smithfield is to be conducted for evidence associated with this investigation.  This evidence includes but is not limited to a firearm and clothing as described by witnesses.  Occupants of this address will then be spoken to in relation to their movements on the 31 July 2002 and their Knowledge of events on that night.

11. The background information refers to the dispute at 3 Filsoll Street, and a white Commodore driving past from which one of the occupants fired a shot with a rifle.

12. On page 2, appears the statement “Call up records show calls made to and from target address 19 Wilterna Crescent during the time of the shooting”, following which there is a handwritten note “Target 2”.  There then appears the statement “Call charge records also show calls made to 42 Fuller Crescent, Elizabeth East.  This address is subject to simultaneous raid on this date”, followed by word handwritten comment “Target 1”.

13. The targets in Exhibit VDJT045 were Bianca Johnston and John Michael Tracey.  John Tracey’s criminal record was attached.  The background information includes a reference to Tracey having numerous priors for offences of violence and says “In particular, he was arrested in 2000 by Elizabeth CIB for shooting another male in the leg over drug debt.  Tracey also has convictions for armed robbery and several serious assaults.  STAR group have been advised and don’t consider Tracey to be high risk at this time”.  This information was obtained by Nelson from the police information system.

14. Under “Strategy tactics and action plan” appears the following:

    1.    Members are to enter the premises and conduct a search for evidence associated with this investigation.  This evidence includes, but is not limited to a firearm and clothing as described by all witnesses.

    2.    The occupants are then to be spoken to in relation to their movements on 31 July 2001.

15. O’Donohue said that (Tr 684):

    19 Wilterna Crescent had come up in the phone records.  There had been phone calls made to and from and I’m not sure when it came up, but, for me, I thought it was that particular Friday morning that there had been checks done on the place and we came across this name John Tracey who has a ponytail. 

    She did not believe that John Tracey could be described as a suspect but called him a person of interest but a very weak one.  She said he had (Tr 685):

    … A ponytail, and there’s a lot of people with ponytails in that area, and the only thing really linking him was the telephone calls made to that address to Bianca Johnston.

16. Nelson prepared the tactical order for the Clarendon Street address of Andrew Considine (Exhibit VDP094).  O’Donohue said “His only link was once again a ponytail and he was related to Rebecca Considine.  I don’t believe there was any phone calls made to that address so it was only the description and being a relative” (Tr 685).  As far as 42 Fuller Crescent was concerned, however, she said that “We believe that the motor vehicle there, the UYL 791 was more than likely the car that was used in the offence”.  She said the plan was to speak to Andrew Considine to find out what he knew.  There was nothing to connect him to the car but if he co-operated the police hoped to search his house (Tr 1319)

17. Parfitt agreed that before attending at the raid he was aware that John Tracey lived at 19 Wilterna Crescent, that he had a ponytail and that he had a history of violence, including one allegation involving a firearm (Tr 1270).  Parfitt agreed that on 9 August 2002, he requested cell site information with respect to Joshua Considine’s mobile phone .  He had neglected to put the request for cell sites on the original request and, having realised that, he re-submitted it by handwriting on the original.  He said he did not receive any results because telecommunication companies would not provide any information at that time due to engineering reasons (Exhibit VDJT068).

18. At 2.15 pm, Polacek drove past 42 Fuller Crescent.  He saw a person drive away in a car but was unable to get close enough to identify anyone or see who was driving.

19. The statement of agreed facts (Exhibit VDP095) discloses the following further enquiries were made on the PIMS system on 9 August 2002:

    10.Mr Parfitt made some enquiries on PIMS for John Michael Tracey commencing at 0850 on 9 August 2002.  These were ‘Enquire Accused’, ‘Enquire on a Person’, and ‘Enquire on Person Details’.

    11.Ms O’Donohue made some enquiries on PIMS for John Michael Tracey commencing at1218 on 9 August 2002.  These were ‘Enquire on a Person’, ‘Enquire on Person Details’, ‘Enquire History Summary’, ‘Enquire on a Person’.

    12.Mr/Mrs Sedunary printed reports for John Michael Tracey commencing at 1234 on 9 August 2002.

    13.Detective Nelson made some enquiries on PIMS for John Michael Tracey commencing at 1441 on 9 August 2002.  These were ‘Enquire Persons at Address’, ‘Enquire on Person Details’, ‘Enquire History Summary’, ‘Enquire on a Person’, ‘Enquire on Person Details’, ‘Enquire History Summary’.

    Saturday, 10 August 2002:

20. Surveillance commenced at 42 Wilterna Crescent at 7 am.  It was not known whether the subject vehicle was there because the roller door was down.  Items 8 and 9 on the surveillance log (Exhibit VDJT055) showed that other addresses were checked to see whether the vehicles were there but they were not.

21. At 7.15 am Polacek attended at the police communications centre to collect the print-outs of the 000 tapes, but they were not at that stage transcribed.

22. At 8.25 am a briefing took place at the Elizabeth CIB office.  This appeared to have been attended by Strange, O’Donohue, Polacek, Loch, Nelson and Scutchings, as well as some other police officers.  Discussion took place with respect to the three addresses which were to be raided, ie 42 Fuller Crescent, Elizabeth East, 19 Wilterna Crescent, Smithfield and 25 Clarendon Street, Davoren Park. 

23. It was proposed that the team to attend at 42 Fuller Crescent would be Strange, Polacek, Nelson and Loch, together with Constables Mountford, Ratcliffe, Tagg, Mowday and Connolly.  That group was designated as “Team 1”.

24. Team 2 was going to attend at 19 Wilterna Crescent, Smithfield.  This consisted of O’Donohue, Scutchings, Cocks and Constables Crowe, McFadyen, Kotsaras, Parfitt, Nicholls and Nankerville, the latter two being uniform police personnel (although O’Donohue said that to the best of her recollection they did not actually attend the house).

25. The addresses were to be searched for a .22 rifle, .22 ammunition and a shirt described as a “druggie shirt”, that is, blue/white, black/white in colour, also a white Commodore and anything to link associates.

26. Polacek said that it was his recollection from the briefing that his role in attending at 42 Fuller Crescent was to seize the car with Loch and to speak to anyone else who was present to see if they could assist with their enquiry (Tr 1021).  Police were to enter the premises using a general search warrant, and a gun dog was also to be used to search the house.

27. Polacek said that he did not consider Wallace to be a suspect at that time as “there was no evidence that he was directly involved in the crime at that stage” (Tr 1021).

28. Polacek said that the usual equipment was to be taken to Fuller Crescent, including radios, probably recording equipment such as tape recorder or video recorder. He did not, however, consider that it was necessary to record any conversation with Wallace pursuant to s 74D of the Summary Offences Act 1953.

29. Polacek had a note from the meeting that the occupants were discussed which included Josh Considine with a question mark.  He said he could not recall what the status of Joshua Considine was in the investigation at that stage but he was a person of interest that needed to be followed up.

30. Parfitt agreed that in the course of the meeting he made a note “Michael Wallace - driver”, although he said in evidence that he could not recall that being discussed.  He thought it might have been an indication that Michael Wallace was the driver of the car involved in the shooting but he could not be emphatic about that.

31. The plan was first to attend at 42 Fuller Crescent and 19 Wilterna Crescent and then re-group to go to 25 Clarendon Street, as there were not enough people to do all three at once.  Eventually, Loch went to 42 Fuller Crescent and O’Donohue’s group went to 19 Wilterna Crescent.  As it happened, the search of Clarendon Street never eventuated.

    Seizure of the white Commodore

32. Before Polacek’s group left the Elizabeth police station the surveillance section advised that the white Commodore had left Fuller Crescent. At 10.05 am, it was located outside Cash Converters at Salisbury, so a decision was made to go there, rather than to Fuller Crescent.

33. Polacek said that upon arrival at Cash Converters, he saw Wallace and a person from Cash Converters approach the back of the vehicle.  Polacek went over and spoke to Wallace and told him that he was seizing the car.  Polacek said he asked Wallace to come with him to the Elizabeth police station to talk to him in relation to the shooting at Elizabeth Downs.  Polacek denied that his demeanour conveyed to Wallace he had no choice in the matter.  Polacek made arrangements for the vehicle to be towed to Ottoway, and Wallace then returned with Polacek and Loch in the police car to the Elizabeth police station.  Nelson stayed behind and attended to the paperwork with respect to the vehicle.

    Interview with Wallace

34. At the police station Loch searched for another officer to assist Polacek, as Loch needed to go to 42 Fuller Crescent.  Loch said he arranged for Detective Smalbil to assist.  Loch thought Smalbil was to be acting as corroborating officer in the interview (Tr 1402).

35. At 10.19 am Polacek went into the interview room at Elizabeth Police station and activated the electronic recording equipment as he said it would “save me writing.  He had consented to be spoken to and it was easier to record it electronically and look at it later.  It’s more efficient, it’s quicker” (Tr 1030).

36. When asked by Ms Chapman whether at that stage he had turned his mind to s 74D of the Summary Offences Act 1953, Polacek said “Yes, I had.  At that stage I had no reason to consider Mr Wallace as a suspect; it was just someone that needed to be spoken to and find out his story.  He needed to be looked at, investigated, find out his story to see if there was anything further to be investigated” (Tr 1030). 

37. At 10.25 am the interview with Wallace commenced.  The first part of the interview primarily related to the car.  It continued until 11.24 when there was a break.  The interview recommenced at 11.51 am and continued until 12.03 pm.  A transcript of the recording is contained in Exhibit VDMW051.

38. On the first page of the interview, Polacek informed Wallace that he was not under arrest.  He then went on to say (at p 2):

    Q.This is me speaking to you now and the seizing of your car is in relation to the investigation of the shooting at Elizabeth Downs on the 31^st of July 2002.

    A.Yes.

    Q.Okay.  Michael, the car which we seized is, if you can describe it for me.

    A.A white VK Commodore.

    Q.I probably should, just before we go on, I probably should say that you’re not obliged to answer our questions, but anything you (do) say may be given in evidence at some stage in the future.  (emphasis added)

39. Polacek described his reason for saying the passage emphasised above to Wallace as his “being cautious” (Tr 1032).  On p 15 of the interview, Polacek clarified with Wallace that he was asking about his movements on Wednesday, 31 July 2002, ie the night of the shooting, and said:

    Q.I have reasonable cause to suspect that the white Commodore we seized from you today was used that night to go around to Filsoll [Street] and was involved in the shooting somehow.

    A.Hmn.

    Q.Okay that is the reason we’ve seized the vehicle.

    A.Hmn.

    Q.What I’ll do now is I’ll get your movements, what happened on that Wednesday.

    A.Allright.

40. Thereafter, Polacek asked Wallace questions about the white Commodore and who was the usual driver of it.  He also asked Wallace about his movements in the preceding week and then said (Exhibit VDMW051 at p 130):

    Q.Okay.  The reason I’m talking to you is because I’ve got reasonable cause to suspect that the white Commodore, which we’ve seized from you …

    A.Mhmm.

    Q.Was used to take people to the shooting at Elizabeth Downs.

    A.Mmm.

    Q.Okay, that’s why we’ve seized the vehicle.

    A.And, and what?

    Q.And because of that um, I would like to know if you were in the vehicle when it went there.

    A.The vehicle wasn’t even there.

41. Polacek said that notwithstanding that he suspected the motor vehicle had been involved in the murder at Filsoll Street, Wallace’s status was still only that of a person of interest as (Tr 1032):

    I didn’t know who was driving the vehicle at Filsoll, it wasn’t his car, he was someone that we needed to find out what his involvement was.  He was a person of interest.

42. At p 18 of the interview (Exhibit VDMW051), Polacek asked Wallace whether he knew anyone who lived at 3 Filsoll.  Polacek said he was trying to establish a link between Wallace and that address.  Wallace then offered some information about Joshua Considine and that was when Polacek established a connection between Joshua Considine and Naomi Wallace, she being Joshua Considine’s partner and the person who had made the 000 call to the police on the night in question (Tr 1110).

43. At p 20, Polacek asked Wallace when was the last time that he had been to the Filsoll Street address, and Wallace responded “Months ago, over a year, easy”.  Polacek said he probably did not believe that response but he had no evidence to the contrary.  He was, however, at that stage able to establish a link between Joshua Considine and Filsoll Street and that firmed up information obtained earlier from the witness Stephen O’Leary. 

44. Polacek could not remember whether he took Wallace home after the interview.  He was asked whether he remembered a conversation with Wallace along the lines of “You know, Mick, we know that you know what we what to know. Just tell us” but Polacek said he could not recall that (Tr 1161).

45. 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:

46. 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.

1. 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.

2. 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. 

3. 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.

4. Polacek advised Wallace of his suspicion about the car when he seized the vehicle, and he said in evidence that he held that suspicion when he had the interview with Wallace (Tr 1159).

5. The tactical order drafted for Wallace’s premises on 10 August 2002 indicated that a search was to be made of Wallace’s home for a firearm or other evidence to connect the occupants of those premises to Filsoll Street.  A general warrant was to be used for that purpose which indicated that police had reasonable cause to suspect a person or persons who lived at 42 Fuller Crescent.

6. Polacek denied that after the seizure of the car his demeanour conveyed to Wallace that he had no choice but to accompany the police back to the Elizabeth police station.  On the evidence, however, Wallace appeared to have been given little option but to comply once his car was seized.

7. In my opinion, Wallace was much more than a person of interest at the time that Polacek commenced his interview. Polacek undertook a reasonably lengthy and detailed interview of Wallace on matters which inevitably touched upon his possible involvement in the crime. Polacek did not, however, disclose his suspicion to Wallace until Q 193 of that interview, and then only after extensive questions were directed to Wallace about his movements on the night in question and those of the car. The “warning” given to Wallace at the beginning of the interview, in my opinion, was equivocal and did not comply with the provisions of s 79A of the Summary Offences Act 1953.

8. In my opinion, Polacek was obliged to comply with s 79A of the Summary Offences Act 1953, and administer a caution to Wallace before conducting such a detailed interview to enable Wallace to make an informed decision as to his right to speak or remain silent.  Polacek’s failure to advise Wallace of those rights, in my opinion, renders the statements made by Wallace involuntary and therefore inadmissible.

9. I should add that even if I had accepted Polacek’s evidence that Wallace was not a definite suspect at the time of the commencement of the interview, I consider this to be a case like Murphy (supra) in which fairness required the police to alert Wallace to the fact that his possible involvement in the crime was being investigated and to have given him a warning to that effect.  For these reasons, I therefore ruled on the 31 August 2005 that the statements made by Wallace to Polacek in the interview of 10 August 2002 be excluded from evidence at the trial.