R v Watts & Golja
[2016] SADC 12
•10 February 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WATTS & GOLJA
[2016] SADC 12
Reasons for Decision of His Honour Judge Costello
10 February 2016
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
Application by accused Watts to exclude parts of search of his van as being unlawful. His van was searched by police officers following his arrest by other police officers on a charge of attempted serious criminal trespass - vehicle searched as being reasonably suspected to contain tools used in the attempted break-in.
Police had reasonable cause to suspect for the purposes of s 68 of the Summary Offences Act 1953 - search was not unlawful and evidence of it should be admitted.
Applications by Watts and co-accused Golja to exclude evidence of search of house at Parafield Gardens occupied by Golja - house searched based upon suspicion that house may contain drugs - information leading police to suspect included information conveyed to police by Watts in a conversation as to a possible bail address - conversation conducted in breach of s 74D of the Summary Offences Act - evidence of the search should nevertheless be admitted in exercise of discretion.
Videotape of interview of Watts interrupted because of videotape malfunction and thereby arguably in breach of s 74D(1)(a) - interview should be admitted in the exercise of discretion despite such non-compliance.
Interview of Golja conducted during the course of search of her premises - question as to whether officers no longer searching under auspices of General Search Warrant and arguably trespassers - if interview unlawful, evidence of it should still be admitted in exercise of discretion - evidence of handwriting of Golja obtained in breach of s 81(4) of the Summary Offences Act - evidence should be admitted in exercise of discretion - Unlawful Possession counts should not be severed - observations in R v Perfili (2006) 95 SASR 560 distinguishable in the circumstances of this case - merging of cash bundles found by police during the search at Parafield Gardens does not result in a trial on that count being unfair to Golja - count 7 should neither be severed nor permanently stayed.
Summary Offences Act 1953 ss 67, 68, 74; Controlled Substances Act 1984 ; District Court Criminal Rules 2014 r 49, referred to.
R v Nguyen (2013) 117 SASR 432; R v Rockford [2015] SASCFC 51; Pollard v The Queen (1992) 176 CLR 177; R v B, KM [2009] SADC 47; R v Perfili (2006) 95 SASR 560, considered.
R v WATTS & GOLJA
[2016] SADC 12Introduction
Adam Mathew Watts (‘Watts’) and Bernadette Kay Golja (‘Golja’) are charged on Information with the following offences:
Adam Mathew Watts is charged with the following offences:
First Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Adam Mathew Watts on the 17th day of June 2014 at Manningham, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid).
Particulars of Offence
Adam Mathew Watts on the 17th day of June 2014 at Manningham, trafficked in a controlled drug, namely 3,4-methylenetioxymethylamphetamine, (also known as MDMA or Ecstasy), knowing or being reckless as to the fact the substance was a controlled drug.
Third Count
Statement of Offence
Aggravated Possessing a Firearm Without a Licence. (Section 11(1) of the Firearms Act, 1977).
Particulars of Offence
Adam Mathew Watts on the 17th day of June 2014 at Manningham, had possession of a Class H firearm, namely an imitation silver handgun, whilst not holding a licence authorising possession of that firearm.
It is further alleged as a feature of aggravation that the firearm was loaded.
Fourth Count
Statement of Offence
Possessing an Unregistered Firearm. (Section 23(1) of the Firearms Act, 1977).
Particulars of Offence
Adam Mathew Watts on the 17th day of June 2014 at Manningham, had in his possession an unregistered Class H firearm, namely an imitation silver handgun.
Fifth Count
Statement of Offence
Unlawful Possession. (Section 41 of the Summary Offences Act, 1953).
Particulars of Offence
Adam Mathew Watts on the 17th day of June 2014 at Manningham, had in his possession personal property, namely $2,635.00 cash, which at the time of such possession or at a subsequent time before the making of this complaint, was reasonably suspected of having been obtained by unlawful means.
Adam Mathew Watts and Bernadette Kay Golja are charged with the following offences:
Sixth Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Adam Mathew Watts and Bernadette Kay Golja on the 17th day of June 2014 at Parafield Gardens, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Seventh Count
Statement of Offence
Unlawful Possession. (Section 41 of the Summary Offences Act, 1953).
Particulars of Offence
Adam Mathew Watts and Bernadette Kay Golja on the 17th day of June 2014 at Parafield Gardens, had in their possession personal property, namely $23,370.00 cash, which at the time of such possession or at a subsequent time before the making of this complaint, was reasonably suspected of having been obtained by unlawful means.
Watts and Golja have each filed applications pursuant to r 49 of the District Court Criminal Rules 2014. In his application Watts seeks to be tried separately from Golja, severance of counts 5 and 7 and the exclusion of particular pieces of evidence. In her application Golja seeks the exclusion of certain evidence, severance of counts 5 and 7, and a permanent stay of count 7.
The parties are content for me to defer consideration of Watts’ separate trial application pending my ruling on balance of their applications.
It is convenient to set out their applications in full.
Watts
Application
The Accused, ADAM WATTS, seeks the following orders or directions:
1. That the accused be tried separately from Bernadette Golja.
Grounds:
·There is no evidence to link the accused to the address at 17B Lantana Drive, Parafield Gardens. The address was nominated by the accused as a possible bail address...;
·None of what Golja claimed in her record of interview implicating the accused is admissible against him.
2. That the charges of unlawful possession (Counts 5 and 7) be severed from the Information on the authority of R v Perfili (2006) 95 SASR 560;
Grounds:
·The joinder of the unlawful possession charges with the trafficking charges, particularly bearing in mind that the accused are charged jointly on Count 7, will potentially complicate the reasoning process of the jury in a way that is undesirable.
3. That evidence of the reason for police attendance in Manningham be excluded from the evidence to be led at trial.
Grounds:
·The search was unlawful;
·The evidence is more prejudicial than probative.
4. That the results of the search of the Mitsubishi van (WFV-895) be excluded from the evidence to be led at trial.
Grounds:
·The search was unlawful in that there was no reasonable suspicion justifying the search.
5. That the results of the search of the house at 17B Lantana Drive, Parafield Gardens. Including the Hilux (S288AFX), be excluded from the evidence to be led at trial.
Grounds:
·The search was unlawful;
·There is no admissible evidence to link the accused with the address and accordingly the evidence is both irrelevant and more prejudicial than probative.
6. That the evidence contained in the declaration of Nathan Jones dated 18 June 2014 be excluded from the evidence to be led at trial.
Grounds:
·The evidence is irrelevant.
7. That the evidence contained in the declaration of William Walker dated 18 June 2014 be excluded from the evidence to be led at trial.
Grounds:
·The evidence is irrelevant.
8. That the following evidence as set out in the declaration of Belinda Vance dated 8 August 2014 be excluded from the evidence to be led at trial:
a.p1 second paragraph to p2 paragraph 2 inclusive.
Grounds:
·The evidence is irrelevant;
·The evidence is more prejudicial than probative.
9. That the record of interview of the accused (Appendix A to the declaration of Olav Goud dated 1 August 2014) be excluded from the evidence to be led at trial.
Grounds:
·The interview was not recorded in accordance with section 74D(1)(a) of the Summary Offences Act 1953;
·The questioning from page 21 onwards is irrelevant and unfair;
·The questioning from page 41 onwards about the address at Parafield Gardens should in any event be excluded on the ground that there is no evidence to connect the accused to that address other than the fact that he nominated it as a potential bail address.
10. That the record of interview of the co-accused, Bernadette Golja, be excluded from the evidence to be led at trial.
Grounds:
·The evidence is irrelevant and inadmissible against the accused;
·The evidence is more prejudicial than probative.
11. That the opinion of Elizabeth Ockleshaw (declaration dated 28 January 2015) be excluded from the evidence to be led at trial.
Grounds:
·The evidence is irrelevant because the witness does not provide an opinion about the accused’s handwriting.
...
Golja – First Application
Application
The Defendant BERNADETTE GOLJA seeks the following orders or directions:
Application 1:
1. All Evidence obtained as a result of the search of 17B Lantana Drive, Parafield Gardens on 17 June 2014 be excluded.
The grounds relied on are as follows:
1. The search is unlawful and all evidence obtained as a result should be excluded under the public policy discretion.
Application 2:
1. The evidence of the cash located at 17B Lantana Drive, Parafield Gardens on 17 June 2014 be excluded.
The grounds of the application are as follows:
1. The combining of the two lots of cash in the envelope labelled ‘B’s Savings’ and ‘Next Batch’ prior to counting the cash makes it impossible to determine the amounts in each envelope.
2. The Cash should therefore be excluded as its admission operates unfairly against the accused.
Application 3:
1. The record of interview conducted with the accused Golja at her premises be excluded.
The grounds of the application are as follows:
1. The police are trespassing during the interview.
2. In the alternative, police are trespassing at the commencement of the interview.
3. In the further alternative, the accused should have been arrested and given all rights prior [to] the interview commencing.
Application 4:
1. The handwriting sample taken from the accused Golja and any analysis of it be excluded.
The grounds of the application are as follows:
1. The same is unlawfully obtained.
...
Golja – Second Application
Application
The Defendant BERNADETTE GOLJA seeks the following orders or directions:
Application 1:
1. Count 7 on the Information, the charge of unlawful possession of $23,370 cash, be permanently stayed as an abuse of process.
The grounds of the application are as follows:
1. The accused cannot receive a fair trial with respect to this count.
Particulars:
1. Police have seized and combined cash in two envelopes.
2. Police have only counted the cash once the contents of each envelope has been combined.
3. There is no evidence as to the amount of cash in each envelope individually.
4. The accused is therefore denied knowledge of the burden she must discharge were she to assert that one or other of the contents of the envelopes came from a lawful source.
5. Without knowledge of the case against her, the accused is denied a fair trial according to law.
...
The Prosecution Case in Overview
Police attended at an address on North East Road, Manningham in response to a complaint regarding an attempted ‘break-in’ and assault. On arrival the police examined the outside of the premises and, amongst other things, noted apparent ‘fresh’ tool marks in the wood of the front door near the lock. They subsequently spoke to the occupant who told them that her then boyfriend, Watts, had been trying to break-in that morning and that he had also assaulted her a few days earlier.
Watts subsequently attended the premises and was arrested. Police were also informed that a person answering the description of Watts had been seen leaving the property ‘clenching’ something to his stomach and that he had driven away in a white van. Upon leaving the house they had noticed a white van parked on the premises. Enquiries revealed that the van was registered to Watts.
Watts was conveyed to the Holden Hill Police Station where he was interviewed on camera.
The arresting police officers then informed two other officers of the results of their investigations. These officers returned to the North East Road premises in order to conduct a search of Watts’ van. The search was conducted pursuant to the provisions of s 68 of the Summary Offences Act 1953 (‘SOA’) in order to ascertain whether the vehicle contained any house-breaking implements that Watts may have been used in an attempt to ‘break into’ the house.
Upon searching the vehicle police officers found quantities of methamphetamine, MDMA, a class H handgun and some $2,635 cash. In addition, the officers found items including a Taser, glass pipes, digital scales, resealable plastic bags and a book containing a ‘tick list’.
Later in the day one of the arresting officers, Officer Walker, had a conversation with Watts (which was not recorded) in relation to bail. Watts is alleged to have offered, as a possible bail address, an address at Lantana Avenue, Parafield Gardens, where a friend of his, Bernadette was residing.
Watts did not give the details of the address but was able, by reference to Google Maps, to identify the route to the house and the house number in the street.
Officer Walker, who later had been informed as to the results of the search of the van, then conveyed details of the Parafield Gardens address to a member of the Holden Hill CIB, Brevet Sergeant Vance.
Brevet Sergeant Vance conducted further enquiries of the Parafield Gardens address. Her enquiries revealed that the premises had been ‘an address of interest’ in relation to prior drug activity and that the driver of a vehicle stopped when leaving this address was a ‘person of interest’ in relation to drugs. Other information she gleaned revealed that Watts was a ‘person involved with drugs’.
Sergeant Vance determined to conduct a search of these premises (under the auspices of a General Search Warrant) pursuant to the provisions of s 67 of the SOA suspecting that there may be drugs and/or firearms at that address. As a result of that search police located a quantity of drugs and cash. During the course of the search the occupant of the house Golja, was questioned by one of the police officers, Constable Jakubowicz who had been assisting during the search. In her interview Golja made a number of admissions in relation to the drugs and cash.
The Evidence
The Crown called evidence from the following four witnesses.
Senior Constable Walker
He said that he attended at the Manningham premises following a report that someone was trying to break-in.
He said that the front door of the premises had ‘obvious tool marks on it as if it had been attempted to be jemmied’.[1] The resident of the premises told him that the person who had been trying to get in was Watts and that ‘he had been trying to break in through the front door and the side door’.[2]
[1] T8.
[2] T9.
He said that after Watts was conveyed to the Holden Hill Police Station he had a conversation with him regarding bail rights. During this conversation Watts proffered a bail address for a house at Parafield Gardens. He said that he did not believe that Watts said that he was currently living there ‘but rather that he had stayed there previously’ and that it would be an appropriate address. However, he did not record the contents of this conversation in any way.
Watts told him that although he did not know the exact address he knew how to get there using Google Maps on his phone. Watts directed him to the address and confirmed the house was at that address. Walker later gave this address to Sergeant Vance.
Prior to speaking to Officer Vance he provided Officers Shepherd and Greenwood with details of his attendance (and that of fellow Officer Jones) at the Manningham house. He explained to them that it had been their intention to search Watts’ van. Greenwood and Shepherd took over the investigation from them and to that end took possession of the keys for the van. Greenwood later informed him of the results of the search of the van which he, Walker, subsequently relayed to his patrol supervisor Sergeant Bos and Sergeant Vance.
In cross-examination he said that he was unaware of an address for Watts in Wynn Vale. He said that he told Vance that the address at Parafield Gardens was an address at which Watts had previously stayed but that he couldn’t remember the exact words he used when telling Sergeant Vance.[3]
[3] T18-20.
He said that he had a practice of talking to accused people about bail. He agreed that he was aware of the requirements in s 74 of the SOA to record ‘any conversation’ with an accused person but that he had not done so in relation to this conversation because it was only in relation to a bail address.[4] He said that he did not believe he had breached the Act in not recording the conversation because he didn’t believe a bail address was ‘relevant’ to the case.[5]
[4] T21-22.
[5] T22.
He said that he did not deliberately mislead Sergeant Vance when telling her about the bail address and that he didn’t tell her that Watts ‘was residing there’.[6]
[6] T22.
He later said that although he would regard it as ‘unrealistic on a day to day basis to record everything said to an accused’, he nevertheless agreed that ‘by [the] definition of the Act he had breached it’.[7]
[7] T22.
Constable Jones
He said he noticed damage to the front door which appeared to have been caused by someone trying to force entry. He spoke to a neighbour who had observed a man clenching his stomach with one hand as though carrying something.
He arrested Watts and provided him with his arrest rights which was videotaped. He did not recall getting a ‘home address’ from Watts but it was his practice to make notes of it. Unfortunately, the notes which he made at that time had been misplaced. He accepted that the address, in the Apprehension Report, in Wynn Vale is likely to have been obtained by him during the arrest and then included by him in that Report.
He was present during an interview with Watts at the Holden Hill Police Station which was also videotaped. He was not present during any subsequent conversations with Officer Walker and Watts.
Later, he and Walker met Officers Greenwood and Shepherd. He briefed them on what had happened at the Manningham house. He was subsequently informed as to the results of their search of Watts’ vehicle.
In cross-examination he said he did not recall giving the Wynn Vale address to Officer Walker, nor any conversation with Walker on the question of bail.
He agreed that he would have made notes of his conversation with Watts recording matters such as his address details. He could not explain why his notes were not included in the documentation sought as part of the subpoena which had sought records of ‘any conversations’ with Watts.
Constable Shepherd
He was asked to assist Officers Walker and Jones in relation to their arrest of Watts. He said that he was given a set of keys for Watts’ van which he then intended to search with a view to possibly locating ‘the tools that may have been used in the attempted break-in’.[8]
[8] T35.
He described locating the van, searching it and the items recovered. He reported what had been located to Sergeant Bos and Officers Walker and Jones.
Sergeant Vance
She was the holder of a General Search Warrant. On 17 June 2014 she was approached by a patrol supervisor, Sergeant Bos and Constable Walker in relation to Watts. She said she was informed by Walker that he had been in a vehicle search earlier in the day when he had stopped a vehicle driven by Watts. She said that during that search they had located and seized a quantity of drugs and a firearm, together with other property suspected of being stolen.
I note that in her declaration this information was conveyed to her by Sergeant Bos. In my view, she is mistaken as to being told that Watts’ vehicle had been stopped and that Walker was one of the officers who searched it.
She said that she was also provided with the Parafield Gardens address by Walker as an address at which Watts ‘was residing’.
She then made ‘follow-up enquiries’ of Watts and the Parafield Gardens address. As a result, she determined to conduct a search of the Parafield Gardens address which she said that she suspected may contain drugs and firearms.
Her suspicion was based upon the information she had received about the drugs, firearms etc found in Watts’ van. It was also based upon the fact that an address at Parafield Gardens, at which she believed Watts was residing, was an address of interest. She also had information that an occupant of the house, Golja, was a person of interest in relation to suspected prior drug activity. Finally, she said that she had other general information to the effect that Watts was involved in drugs.
Based on these pieces of information in combination she determined to search the house. This information gave rise to her suspicion that an offence or offences may have been committed in and about that address. She searched the premises in conjunction with Officers Hudson, Jakubowicz and Tasker.
During the search she said a quantity of cash and drugs were located.
In cross-examination she said that Walker had told her that Watts was presently residing at the Parafield Gardens house. She agreed that Golja was interviewed as a result of drugs being located during the search. She agreed that at the time the interview was being conducted the officers were not ‘physically’ assisting in the actual search.
Constable Goud
He became involved in the investigation as a result of being briefed by Officers Greenwood, Shepherd, Walker and Jones.
He took on the role of investigating officer which involved directing the investigation. He conducted numerous checks on police systems including obtaining details for Watts, such as his driver’s licence and vehicle registration.
He followed up other addresses for Watts being addresses at Brahma Lodge and the address at Wynn Vale. He conducted a search at Brahma Lodge which did not uncover anything of interest. Enquiries were made of the Wynn Vale address. He telephoned a person who identified herself as the mother of Watts and who said that he hadn’t resided there for over a year.[9]
[9] T54.
In cross-examination he agreed that he was the person responsible for compliance with the subpoena seeking records relating to the search at Parafield Gardens. He agreed that no record of any statistical return prepared by an Officer Clark (one of the holders of a General Search Warrant for that search) was included in the answer to the subpoena.
The Law
The search of the van was conducted pursuant to the provisions of s 68 of the SOA which relevantly provide:
68—Power to search suspected vehicles, vessels, and persons
(1) A police officer may do any or all of the following things, namely, stop, search and detain—
(a)a vehicle or vessel in or upon which there is reasonable cause to suspect that—
(i)there are stolen goods; or
(ii)there is an object, possession of which constitutes an offence; or
(iii)there is evidence of the commission of an indictable offence.
...
As may be seen the power of Officers Shepherd and Greenwood to search the van was conditioned upon there being a reasonable cause for them to suspect that in the accused’s van there were objects, possession of which constituted an offence, or alternatively, evidence of the commission of an indictable offence.
For his part Constable Shepherd said that:
We were acting under s 68 of the Summary Offences Act as we suspected the tools used in the attempted break-in may be inside the vehicle.
And:
The investigating officers had mentioned that at the address where the original offence occurred there were tool marks in the door of the premises that appeared to have been jemmied by some, possibly steel, object and we believed it was some sort of tool.[10]
[10] T35.
In R v Nguyen[11] the Court considered the concept of reasonable suspicion in the context of a not dissimilarly worded provision in the Controlled Substances Act 1984 and said:[12]
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or ‘idle wondering’ about the existence of the fact is not the same as a suspicion that it exists.
Importantly, s 52(6) and (9) of the CSA require more than an actual suspicion; the police officer must not only suspect but ‘reasonably suspect’ that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts. (my emphasis)
[11] (2013) 117 SASR 432.
[12] Ibid at [21] and [22].
It is also apparent from a reading of Nguyen that the time, at which the reasonable suspicion must be held, is when the vehicle is searched.
In his submission Mr Stratton-Smith said that the mere fact that a person is accused ‘of breaking-in doesn’t mean to say that they used some sort of implement to break-in’ and that there was no mention to police, by the occupant of the premises, of the front door or of implements being used.[13]
[13] T57.
However, the information conveyed to Officers Shepherd and Greenwood was that the investigating officers had observed tool marks in the wood of the front door and that there had been an attempted serious criminal trespass via both the front and side doors. This information was based upon the officers’ observations, information from the occupant and information concerning the sighting of a man apparently clutching something before getting into a van.
In my view, this was more than sufficient information upon which to entertain a reasonable cause to suspect that the van may contain tools the possession of which would constitute an offence or that inside the van there may be evidence of the commission of an offence within the meaning of s 68 of the SOA.
I therefore decline to exclude evidence of the results of the search of Watts’ van.
The Search at Parafield Gardens
It is accepted that this search was conducted under the auspices of a General Search Warrant of Sergeant Vance pursuant to s 67 of the SOA which relevantly provides:
67—General search warrants
...
(4) The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a)the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—
(i)an offence has been recently committed, or is about to be committed; or
(ii)there are stolen goods; or
(iii)there is anything that may afford evidence as to the commission of an offence; or
(iv)there is anything that may be intended to be used for the purpose of committing an offence;
(b)the officer may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that—
(i)there are stolen goods; or
(ii)there is anything that may afford evidence as to the commission of an offence; or
(iii)there is anything that may be intended to be used for the purpose of committing an offence;
(c)the officer may seize any such goods or things to be dealt with according to law. (my emphasis)
The phrase ‘reasonable cause to suspect’ is used again and, as such, the reasoning in Nguyen is equally apposite to the requisite nature and degree of suspicion for a ‘s 67 search’.
The lawfulness of the search was the subject of several challenges. First, it was submitted that Constable Walker’s bail conversation with Watts, which ultimately led to the search of the Parafield Gardens address, was unlawful being undertaken in breach of the provisions of s 74D of the SOA.
Section 74D of the SOA relevantly provides:
74D—Obligation to record interviews with suspects
(1) An investigating officer who suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:
(a)if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;
(b)if it is not reasonably practicable to record the interview on videotape but it is reasonably practicable to record the interview on audiotape, an audiotape recording of the interview must be made;
(c)if it is neither reasonably practicable to record the interview on videotape nor reasonably practicable to record the interview on audiotape—
(i)a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and
(ii)as soon as practicable after the interview, the record must be read aloud to the suspect and the reading must be recorded on videotape; and
...
(3) In deciding whether it is reasonably practicable to make a videotape or audiotape recording of an interview, the following matters must be considered:
(a)the availability of recording equipment within the period for which it would be lawful to detain the person being interviewed;
(b)mechanical failure of recording equipment;
(c)a refusal of the interviewee to allow the interview to be recorded on videotape or audiotape;
(d)any other relevant matter.
...
Section 74E of the SOA relevantly provides:
74E—Admissibility of evidence of interview
(1) In proceedings for an indictable offence, evidence of an interview between an investigating officer and the defendant is inadmissible against the defendant unless—
(a)the investigating officer complied with this Part; or
(b)the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer's non-compliance.
(2) If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b), the court must—
(a)draw the jury's attention to the non-compliance by the investigating officer; and
(b)give an appropriate warning in view of the non-compliance,
unless the court is of the opinion that the non-compliance was trivial.
Although the conversation between Constable Walker and Watts related solely to the question of a possible bail address, it is nevertheless an interview for the purposes of s 74C of the SOA and, as such, was required to be recorded in accordance with s 74D. On the evidence of Constable Walker there was no impediment to the conversation being recorded on video. I am therefore satisfied that the evidence of conversation was elicited in breach of the requirements of s 74D.
The question arises as to whether it should, nevertheless, be admitted in the exercise of my discretion.
The Bunning v Cross Discretion
In considering the exercise of my discretion, I have had regard generally to the analysis of Stanley J in R v Rockford.[14] As the High Court has acknowledged the exercise of this kind of discretion involves a balancing exercise. Factors in favour of admitting this evidence include the fact that this is an important piece of evidence in the prosecution case. In so saying, I readily appreciate the risk, identified in Rockford, that if evidence is damning enough that factor will outweigh the illegality in obtaining it, thereby rendering meaningless the statutory obligations in s 74D. Even with that caveat it is nevertheless a factor in favour of its admission.
[14] [2015] SASCFC 51 [29]-[36].
A further factor in favour of its admission is the conduct of the police. I am satisfied that the failure to record the interview did not occur as a result of a conscious decision, on the part of Officer Walker, to avoid the requirements of s 74. Rather, in my view, it arose out of an erroneous belief on his part that this conversation was, to put it simply, not one contemplated by s 74D because it related only to the issue of bail or a bail address.
As against these factors, factors in favour of excluding the evidence include the consideration of ‘high public policy’ identified by Deane J in Pollard v The Queen,[15] namely the duty of the court to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence.
[15] (1992) 176 CLR 177.
In this context I have had regard to Officer Walker’s evidence to the effect that ‘it would be unrealistic on a day-to-day basis’ to record every conversation with an accused person.
I regard this response as more of an ‘after-thought’ rather than any considered position on his part. Furthermore, there is nothing to suggest that such a view is or was widely held in the police department.
In all the circumstances I am persuaded that the balancing exercise favours the admission of this evidence.
It was next submitted that the search at Parafield Gardens was unlawful, there being insufficient information available to Sergeant Vance to found the requisite reasonable cause to suspect that an offence had been committed.
In her evidence Sergeant Vance pointed to a variety of factors to found her suspicion, being:
i) the fact that she had been told that Watts had been residing there.
In my view, she was either mistaken as to this fact in that she misinterpreted what she was told by Officer Walker or Officer Walker spoke ‘loosely’ in conveying the information concerning the address and thereby innocently misled her.
Either way I am quite satisfied that there was no conscious impropriety in the provision of this information to Sergeant Vance. However, given that, in truth, Watts had only stayed there previously rather than being a current resident, if this were the only information, I would not have regarded it as sufficient to found a reasonable suspicion.
However, there were other factors to which Sergeant Vance had regard, namely:[16]
ii) the contents of the search of the van belonging to Watts at Manningham;
iii) the house at Parafield Gardens being itself a place of interest;
iv) its occupant, Golja, being a person of interest; and
v) Watts being involved in drugs.
[16] T39-41.
These factors, in combination with the provision of the bail address, are sufficient to constitute a reasonable cause to suspect. Accordingly, although the information upon which Sergeant Vance based her decision to search the properly is tainted in part by the same illegality, which surrounds the impugned bail conversation, I am satisfied for similar reasons, that the factors in favour of admitting the results of the search outweigh those in favour of its exclusion.
Evidence of the Declarations of Officers Walker and Jones
The evidence in the declarations of officers Walker and Jones was sought to be excluded upon the basis that the evidence was irrelevant.
In my view, the evidence in both declarations is relevant and should be admitted.
Evidence in Part of the Declaration of Sergeant Vance
Evidence on pages 1 and 2 in the declaration of Sergeant Vance was said to be irrelevant and more prejudicial than probative.
In my view, this evidence is relevant and while potentially prejudicial, is also equally probative.
The Record of Interview of Watts
Watts submitted that this interview should be excluded because:
i) It was not recorded in accordance with s 74D(1)(a) of SOA. This recording inexplicably stopped prior to questioning being completed;
ii) The questioning from page 21 onwards is irrelevant and unfair; and
iii) The questioning from page 41 onwards should be excluded because there is no evidence to connect Watts to the Parafield Gardens address apart from the fact that he nominated it as a bail address.
The Breach of s 74D(1)(a)
Section 74D(1)(a) requires that if it is reasonably practicable to record the interview on videotape, a videotape recording must be made.
Section 74D(3) makes it clear that, in deciding whether it is reasonably practical to make a videotape, a factor for consideration is mechanical failure of the recording equipment.
I am not persuaded that in these circumstances it was reasonably practicable, but in the event that I am wrong and s 74D(1)(a) has been breached, I am of the view that the interview should be admitted in the interests of justice.
It contains voluntary admissions by Watts which are highly probative in the Crown case. There is no suggestion that if the subsection has been breached it was other than accidental. In that sense, the ‘breach’ may be categorised as technical.
Unfair Questioning from Page 21
In fairness to the accused this submission was not developed. I would therefore defer consideration pending hearing further from the parties.
Questioning on Parafield Gardens
It was submitted that there was insufficient information in the hands of the police linking Watts to this address.
Prior to being interviewed the police were aware that Watts had proffered this address as an address where, at least, he had been staying in the past, that drugs had been found in a van registered to Watts in Manningham, that Watts was involved in drugs in a general sense, and that the house at Parafield Gardens and its occupant were of interest to the police in connection with drugs.
Furthermore, during the interview Watts acknowledged that a vehicle parked in the driveway, a Toyota Utility, belonged to him.
In my view, these pieces of evidence, in combination, are sufficient to reasonably connect Watts to that address.
The Record of Interview of Bernadette Golja be excluded as against Watts
Although parts of the interview may be inadmissible against Watts, any prejudice to him can be overcome by appropriate directions during the course of the trial. I do not accept that the evidence is irrelevant.
Elizabeth Ockleshaw
No submissions were advanced in relation to this witness. I will defer consideration on this aspect of the application until the parties have considered these reasons.
Severance of Counts 5 and 7
Counts 5 and 7 were sought to be severed from the balance of the charges on the authority of R v Perfili. [17] In Perfili Sulan J (with whom Duggan and David JJ concurred) said:
The authorities indicate the importance of ensuring that a correct process of reasoning has been followed in convicting a person under s 41 and indicate that the process of reasoning required can be complex. The nature of the reverse onus and the existence of a reasonable suspicion are difficult concepts. The process of reasoning becomes more difficult where the charge of unlawful possession is included on the same information as other offences. In such cases, the process of reasoning is complicated by the juxtaposition of the elements of unlawful possession against the elements of another offence. A finder of fact in such cases may be required, as was the case in the applicant's trial, to apply different onuses of proof in evaluating each element of the separate charges, as well as applying different standards of proof between elements. As a consequence, it is highly undesirable for a charge of unlawful possession to be joined with other charges, particularly in a trial by jury
[17] (2006) 95 SASR 560 [45].
In relation to these observations it needs first to be recognised that the Court in Perfili did not conclude that the inclusion of the unlawful possession count resulted in a miscarriage of justice given the adequacy of the directions given to the jury.
Secondly, there was an issue of potential confusion arising in the minds of the jury in Perfili whereby the prosecution bore the onus on count 1 but a reverse onus arose on counts 2 and 3. In the present trial both accused will face a reverse onus on some of the other charges in addition to the unlawful possession charges. In my view, the prospects of the jury being confused in this case do not arise in the same way, or at least, not to the same extent, as in Perfili.
Furthermore, part of the circumstantial evidence in support of the drug counts will be the existence of the cash. To sever these counts would be somewhat artificial and potentially lead to an additional unnecessary hearing or hearings.
In the circumstances of this case the observations of the Court in Perfili do not necessitate the severance of counts 5 and 7.
In addition to the above, Golja advanced the following separate submissions asserting:
Unlawful Search
The search at Parafield Gardens was unlawful and that evidence of it should be excluded.
For reasons already identified, I am satisfied that, even if the search (being in part based on the bail conversation) was unlawful, evidence obtained as a result should not be excluded.
Exclusion of Record of Interview
It was submitted that officers assisting Sergeant Vance ceased to do so when they conducted an interview with Golja at the premises. As such, they were no longer there assisting in the search under the auspices of her General Search Warrant and were effectively trespassers. Accordingly, her record of interview was unlawfully conducted and should be excluded.
The issue of whether or not police officers, assisting in a search under a General Search Warrant, cease to be operating under its auspices, during the time in which they are interviewing a person in relation to suspected offences, involves complex questions of fact and law. I have not heard full argument on this issue. I propose, for the purposes of argument, to assume that the officers had ceased to operate under the Warrant during the course of the interview and that the record of interview was conducted unlawfully. I would not, however, exclude evidence of the interview in the exercise of my discretion. The record of interview contains cogent evidence for the prosecution. At worst for the prosecution the officers were operating under an honest but erroneous belief that they were entitled to interview Golja at the scene. Indeed, Sergeant Vance opined that these officers, having become aware of the existence of drugs on the premises, were not only entitled but obliged to question Golja.
On the other hand, if the officers were, in truth, ‘unlawfully’ on the premises, the law should not acquiesce in behaviour which effectively ‘cuts corners’ in terms of proper police procedure. Again, undertaking the balancing exercise and bearing in mind that there was no conscious disregard for the law, I am of the view that the evidence should not be excluded.
Alternatively, it was asserted that Golja should have been arrested and given all rights prior to the interview commencing. In my view, having given Golja an appropriate warning as to her entitlement not to answer questions, the officers were entitled to interview her prior to deciding whether or not to arrest her.
Golja’s Handwriting Sample
On the face of the statement of Officer Jakubowicz the handwriting sample was obtained in breach of the requirements of the SOA.
A similar argument to that advanced by Golja was considered by Judge Millsteed in R v B, KM.[18] I gratefully adopt his Honour’s analysis of the purpose behind the legislative scheme generally and s 81(4) in particular.
[18] [2009] SADC 47 [20], [22] and [47]-[52].
Again, I did not hear full argument on the issue nor evidence from the police officer concerned. If the parties wish to call further evidence or advance further argument on this issue, I will do so.
As presently advised, I would be disposed to admit the evidence bearing in mind that the handwriting sample was obtained a matter of minutes prior to her arrest in circumstances which do not suggest a deliberate or reckless disregard of the law.
Exclusion of the Evidence relating to the Cash – Permanent Stay of Count 7
Golja submitted that the combining of the two lots of cash in the envelopes labelled ‘B savings’ and ‘Next Batch’ prior to its being counted, makes it impossible to determine the amounts in each envelope. To adduce evidence as to the total amount located would therefore operate unfairly against Golja.
Golja submitted that some of the money may have lawfully been obtained and that other money may be the property of another person or persons. It is said that, as a result of the conduct of the police in merging the two bundles of cash, there is no way of determining how much was in each envelope. Golja, it was submitted, does not know the onus that she bears and cannot therefore receive a fair trial.
I agree with the Crown that this evidence is still admissible and, subject to the nature of cross-examination, may turn out to be either cogent or of little weight. The merging of the bundles in no way precludes Golja from asserting that part of the money was obtained honestly and that the balance of any such sum belonged to Goja or someone else. The merging of the money in and of itself does not ‘rob’ Golja of the opportunity for a fair trial.
There is therefore no proper basis, to my mind, for its exclusion. Nor does the conduct of the police provide a proper foundation for the charge on count 7 to be permanently stayed in the sense that she cannot now receive a fair trial.
Conclusion
For these reasons the evidence sought to be impugned should be admitted.
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