R v Williams - [2008] SADC 68

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILLIAMS
[2008] SADC 68
Reasons for Ruling of His Honour Judge Chivell
28 May 2008
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Police interrogation - whether accused given reasonable opportunity to exercise rights under s79A Summary Offences Act, 1953 - whether interview tainted by previous failure to comply with s79A - whether accused declined to answer questions - whether accused intoxicated by drugs at time of interview. Application to exclude evidence in exercise of discretion refused.
Summary Offences Act 1953 s79A, referred to.
R v Andrews & Ors [2005] SASC 15; R v Lee (1950) 82 CLR 133; Wendo v The Queen (1963) 109 CLR 559; R v Collins (1976) 12 SASR 501; R v Stafford (1976) 13 SASR 392; Robinett v Police (2000) 78 SASR 85; R v Williamson (No 2) (1997) 69 SASR 486; R v Fry (1990) LSJS 161; R v Wilson (1987) 47 SASR 287; Van der Meer v R (1988) 82 ALR 10, considered.

R v WILLIAMS
[2008] SADC 68

The accused, Brian Williams, is charged with possessing methylamphetamine for sale, contrary to s32(1)(e) of the Controlled Substances Act 1984.
On 6 April 2006, at about 10.40pm, police entered room 500 at the Motel Adjacent Casino at Bank Street, Adelaide and, in his presence, conducted a search of Mr Williams’s belongings pursuant to a General Search Warrant held by Detective Brevet Sergeant Lange. The product of the search forms the basis of the charge.
By Rule 9 application, dated 15 March 2008, Mr Williams seeks exclusion of evidence of certain statements made by him to the police both during the course of the search and afterwards at the motel, and later at the City Watch House at Adelaide.
The Rule 9 application originally sought exclusion of the proceeds of the search as a matter of discretion on the basis that the search was unlawful. That application was not pursued.
Exclusion of the conversations with police was sought on the basis that Mr Williams did not act voluntarily when he spoke to them. That ground was also not pursued.
The application also sought exclusion of the evidence of conversations on the basis that s74D of the Summary Offences Act was not complied with. This ground was also not pursued.
The application for exclusion was pursued on the basis that:
·Mr Williams had indicated a wish to exercise his right to refrain from answering questions, and that such indication was disregarded by the interviewing officer;
·Mr Williams was not provided with his arrest rights, pursuant to the requirements of s79A of the Summary Offences Act, at the appropriate stage; and
·the applicant was not afforded any adequate opportunity to exercise those rights.
It was submitted by Mr Anders, counsel for Mr Williams, that by virtue of these matters, the conversations with the police should be excluded in the exercise of my discretion.
There is an onus on the applicant for exclusion to establish the grounds upon which the discretion should be exercised in the manner suggested (R v Andrews & Ors [2005] SASC 15; R v Lee (1950) 82 CLR 133 at 152; Wendo v The Queen (1963) 109 CLR 559 at 565; R v Collins (1976) 12 SASR 501 at 508, 514, 516).
It is well established that if Mr Williams had indicated a wish to exercise his right to refrain from answering questions, and if such an indication was disregarded by the interviewing officers, then the police should not have questioned him further. The relevant authorities were discussed by Debelle J in R v Andrews & Ors (supra) at [59]. For example, in R v Stafford (1976) 13 SASR 392 at 398, Bray CJ said:
As I said in Collins case, it is now clear from R v Evans, R v Ireland (No 1) ..... and Harris v Samuels that the police should not persist in questioning a man who has signified his unwillingness to answer them and a fortiori when he has asked to see a solicitor before answering.
In R v Andrews & Ors (supra), the factual situation was somewhat similar to the one before me, although not precisely the same. In that case, the accused had, on 3 March 2002, been arrested for attempted murder. He was informed of his rights under s79A of the Summary Offences Act. He was given an opportunity to telephone his father, but was unable to contact him. The accused then spoke to a solicitor. The solicitor informed the police officer that he had advised the accused not to answer questions. The police officer then questioned the accused for a short period, and the accused exercised his right to silence.
On 4 March 2002, the victim of the alleged offence died. On 6 March 2002, the accused was spoken to by the police again. They advised him that the victim had died, and that he was being arrested for murder. Police then advised the accused of his rights under s79A again, and the accused indicated that he wished to exercise those rights, although he was unable to indicate whom he wished to advise of his whereabouts by telephone, or whom he wished to have present at any interview. He was cautioned that he was not obliged to answer questions. When asked if he was happy to answer the questions, he said:
Yeah, which ever ones I see fit yes, not a problem
Debelle J admitted the evidence of the questions and answers which followed on the basis that there had been no breach of s79A, and that even if there had been, he would not have exercised a discretion to exclude the evidence because the police officer did not act with “deliberate or reckless disregard of the requirements of s79A” she gave the accused four opportunities to decline to answer questions, the accused understood his rights and what was being put to him, and admission of the evidence was not contrary to “the public interest in ensuring that police officers act so as to ensure that arrested persons are given a reasonable opportunity to exercise their rights provided by s79A” (see [68]).
In the matter before me, all of the conversations between the police officers and Mr Williams, both at the motel and at the City Watch House, were video taped in compliance with s74D of the Summary Offences Act. Indeed the video recording started before entry was gained to the room at the motel. The video tape of what transpired at the motel is exhibit VD‑P2. The video tape of the interview at the City Watch House commencing at 12.22am was exhibit VD‑P3. The transcripts of the two video tapes are exhibits VD‑D4 and VD‑D5 respectively.
Detective Smith, who became the investigating officer in the matter, said that there was some conversation at the Watch House when she informed Mr Williams that there was a delay until an interview room became available. This does not constitute a breach of s74D, and even if it did, it could not justify exclusion of the evidence of conversations which followed.
The evidence is clear that as soon as the police entered the room, Detective Smith cautioned Mr Williams that the video camera was operating, that anything he said was being recorded, that whatever he said could be used in court later, and he confirmed he understood that (page 2). The caution was repeated at page 3, at pages 4-5 and at page 8 of the transcript. On each occasion, Mr Williams indicated that he understood the caution.
It is clear from the video tape that the police were pre‑occupied with issues of personal safety in relation to the handling of dangerous articles, and with the search.
Both Detective Smith and Brevet Sergeant Lange agreed in cross‑examination that Mr Williams was not free to leave the motel room, and that he was effectively subject to a “de facto” arrest virtually as soon as the police entered the room.
While the search proceeded, various conversations with police officers, some of it fairly light‑hearted banter between Mr Williams and the police officers, took place. Occasionally, police officers would ask Mr Williams about certain articles found during the search.
Section 79A Summary Offences Act
Section 79A(1) of the Summary Offences Act provides:
Subject to this section, where a person is apprehended by a police officer (whether with or without a warrant)-
(a)the person is entitled to make, in the presence of a police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts; and
(b)where the person is apprehended on suspicion of having committed an offence-
(i)    the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subjected while in custody; and
(ii)     if English is not the person’s native language - the person is entitled, if he or she so requires, to be assisted at an interrogation by an interpreter; and
(iii)     the person is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law).
Section 79A(3) provides:
A police officer must, as soon as is reasonably practicable after the apprehension of a person-
(a) inform that person of his or her rights under subsection (1); and
(b)warn the person that anything that he or she may say may be taken down and used in evidence.
Mr Crowe, counsel for the Director of Public Prosecutions, conceded that Mr Williams had been “apprehended” at an early stage of the proceedings, and should have been informed of his rights pursuant to s79A earlier than he was. Mr Crowe said that there was confusion between the uniformed officers and the detectives as to whose role it was to arrest Mr Williams. Mr Anders argued that some of Detective Brevet Sergeant Lange’s answers suggested that he was ignorant of his obligations under s79A. That submission was justified on the evidence.
For whatever reason, it is clear that s79A was not complied with prior to the search. As I noted earlier, the application to exclude the search evidence was not pursued. Mr Crowe did not seek to lead evidence of anything said between Mr Williams and the police up to that point.
When the search was completed, Detective Smith took Mr Williams out of the room and sat down on the couch with him in another area of the motel. She told Mr Williams that he was being arrested for possessing drugs for sale. The following conversation then took place (exhibit VD-D4, pages 14-15):
Q.What I’ll do, what I’ll do, I’ll take you through your rights, okay, ‘cos as an arrested person you have certain rights. And we’ve already been through in there about you don’t have to answer any of my questions but anything you do say is being recorded at the moment and can be used in evidence later on court, okay so you understand that? You also have a right to a telephone call to a nominated friend or relative to advise them of your whereabouts.
A.Yeah.
Q.Do you want to exercise that right?
A.I might need to later, yeah.
Q.Okay. You let me know when you want to facilitate that, we’ll do that, okay?
A.Yeah.
Q.Also while you’re in custody, any interview or investigation that we do, you have the right to have a friend, relative or solicitor present?
A.Yeah.
Q.All right. Do you want to exercise that right?
A.Um, maybe.
Q.Okay. Yeah, we can sort that out if you want to call a solicitor. Have you got a solicitor?
A.No.
Q.Nuh, okay. We can call legal Aid.
A.I’m saying, I’m saying maybe, all right. Yeah, yeah.
Q.All right. If English is not your native language you have the right to an interpreter, but obviously we’re speaking English so you don’t you don’t need that right. Yeah, that’s about it, and I’ve said, you’ve been told, you don’t have to answer any questions.
There was then some further discussion about Mr Williams’s belongings and how they would be transferred to the police station, and about bail. At all times, Detective Smith was courteous and solicitous of Mr Williams’s welfare.
Exhibit VD-D4 page 17:
Q.Now is it your intention to answer, answer any of my questions about what’s gone on tonight?
A.What do you mean?
Q.Like obviously I want to ask you some questions about what we found in your room.
A.Yeah, go on, yeah.
Q.The scales and all that. Are you gonna answer my questions?
A.Well yeah, I don’t think so. I mean to say, you’ve got me with all the gear so it doesn’t matter.
Q.All right.
A.I mean to say, as you know, it’s there for personal use and sale.
There were no further questions about the police allegations after this exchange took place. Detective Smith told Mr Williams that they would take him to the City Watch House, that the other police officers would bring his belongings with him as he had no other place of abode. He was told there would be an interview at the City Watch House.
Mr Anders submitted that at the very least Mr Williams’s answers in the passage quoted above were ambiguous, and should have been clarified by Detective Smith. He referred to the remarks of Bleby J in Robinett v Police (2000) 78 SASR 85 at [23-40].
In my opinion, in the particular circumstances of this case, no clarification was necessary. Although Mr Williams hesitated and said “I don’t think so” initially, he then clearly made a decision to answer, before saying “I mean to say, you’ve got me with all the gear so it doesn’t matter”. If that much is not obvious when reading the transcript, it is obvious when the video is listened to and Mr Williams’s voice inflections are noted.
In any event, the situation was clarified when the formal interview was conducted back at the City Watch House.
The Formal Interview
The interview commenced at 12.23am.
At the commencement, Detective Smith cautioned Mr Williams that the interview was being videoed-recorded, and that he did not have to answer questions and that anything he did say was being recorded and may be used as evidence later (exhibit VD‑D5, page 2).
On my count, that makes a total of six times that Mr Williams was cautioned that evening.
Detective Smith then went through the events of the search, and Mr Williams agreed with her outline. She reminded him that she had told him his rights at the time of the arrest and asked him if he wanted her to “take you through those rights again?”. He declined (page 2).
Detective Smith then asked if Mr Williams wanted her to facilitate any of those rights and he said (page 2):
Um, I don’t know. See I might need bail.
There was then discussion about bail in which Mr Williams indicated that he might need to telephone someone to arrange a place to stay.
Detective Smith then reminded Mr Williams of his earlier indication that he might want to contact a lawyer. She said (page 3):
Q.But basically you did say that you might want to call a lawyer when we got back. Have you thought about that?
A.Yeah. But no, I’ve never used a lawyer in my life, so -
Q.And you -
A.No, I’m just saying, these are some of the things that I might use.
Q.Right, okay.
A.That you said to me.
Again, Mr Williams’s answers were directed to the fact that he might wish to avail himself of the opportunity to make a telephone call to a relative or friend, in connection with bail. After informing him that Detective Smith did not have the authority to indicate whether or not Mr Williams would get bail, she said (page 4):
Q. ..... Well that’ll, that’ll be up to the sergeant that’s here.
A. Yeah, yeah, no, that’s cool.
Q.Yeah, I can’t answer. Right, so can you take me through. Do you want to answer my questions.
A.I’ll answer what I want to answer, yeah.
Q.Okay. Well you take me through what, what happened, well what was going on in your room.
(my underlining)
Mr Williams then proceeded to make a number of statements confirming that at least some of the amphetamine in his possession at the motel was for sale. He explained his method of selling in some detail. He said that he was “just about to start” selling when the police arrived (page 7). He declined to answer a question about from whom he had bought the drugs (page 12).
Throughout the interview, Mr Williams was very co‑operative and helpful to the police. There was a friendly rapport between Detective Smith and him, and, consistent with the earlier conversations at the motel, even some light‑hearted banter between them.
Mr Anders submitted that this conversation was “tainted” with the illegality of what happened earlier at the motel. He referred to the remarks of Matheson J in R v Williamson (No 2) (1997) 69 SASR 486, Mullighan J in R v Fry (1990) LSJS 161 at p212, White J in R v Wilson (1987) 47 SASR 287 and the High Court in Van der Meer v R (1988) 82 ALR 10.
However, in my view there was a clear separation between the events which occurred in the room at the motel prior to the arrest rights being given pursuant to s79A of the Summary Offences Act, and what happened after s79A was complied with. Mr Anders referred to the crowding of multiple police officers in the room, the pressure that Mr Williams may have felt to answer questions during the course of the search, and what he described as the “lip service” paid by the police officers to the cautions that they administered.
Even accepting some of these criticisms, for the purpose of the argument, it does not automatically follow that any such pressure was felt by Mr Williams when he was involved in his discussions with Detective Smith. No such pressure was apparent to me when viewing the video tape of their conversations. Mr Williams made it very clear to Detective Smith on several occasions that he did not wish to contact a lawyer, or any one else for that matter, except in connection with bail.
Mr Williams’s evidence on the voir dire was largely consistent with his comments during the interview. He did not express any discomfort as a result of what happened during the search. He did not express any lack of understanding of the rights that were explained to him by the police. For example, Mr Anders asked him:
Q. What did you think would happen if you were sent to Legal Aid.
A.I don’t trust lawyers, honestly. I was so cross at the Magistrates they told me to get a lawyer there, I said I didn’t need one then, then sent across to here, I come here twice and they told me I had to get a lawyer and that’s why I got a lawyer now.
Mr Williams acknowledged to Mr Crowe in cross-examination that he had been arrested several times previously, and that he had “most probably” been given his arrest rights but “like I said, I don’t use lawyers, hey, honestly” (T57).
Mr Crowe asked him (T59-60):
Q...... when police did enter the motel room, you did have some bags of methylamphetamine in there, didn’t you.
A.As I turned around, saw them coming through, threw my bags on the bed (DEMONSTRATES) -
Q.You basically got caught red‑handed.
A.I’d say I did, so I just threw the bags on the bed, yes.
.....
Q.You decided fairly quickly that the police had caught you red‑handed and you would cooperate to the best of your ability.
A.Well, I was in the wrong.
Mr Crowe asked (T61):
Q.Even if the police had told you of the use of a solicitor or the ability to speak to a solicitor, you probably wouldn’t have taken them up.
A.I’m not too sure. I’d say most probably not but I’m not sure. I had my thoughts the offence was trivial, I didn’t realise it was as severe as what it is.

Whatever Mr Williams’s thoughts were about the seriousness of the charge, he was in no doubt that police were investigating the charge of possession of methylamphetamine for sale. I am not persuaded that he thought that was a trivial offence. The way the police conducted the search back at the motel could hardly have given him that impression.
In any event, there is no obligation on the police to give legal advice to a person in Mr Williams’s position and explain to him the seriousness of his position or otherwise. In my opinion, Detective Smith complied with s79A of the Summary Offences Act as soon as it became clear to her that it was her role to arrest Mr Williams. As a result of that compliance, Mr Williams clearly understood his rights and chose to exercise them in the way he did. His decision not to contact a relative or friend, and not to have anyone present at the interview, whether a lawyer or anybody else, was in the exercise of a free choice made by him.
For those reasons, if I am wrong about compliance with s79A of the Summary Offences Act, I would not exercise my discretion to exclude the evidence in any event. Mr Williams has not been deprived of the opportunity of exercising any of the rights granted to him by that legislation as a result of the conduct of the police officers. There is no evidence that he was influenced by what happened during the search to exercise his choice in a particular way. He had the opportunity to say so in evidence, and did not do so. The onus is on the defence to persuade me that the discretion should be exercised in favour of excluding the evidence. The evidence establishes no grounds, in my opinion, for the exercise of that discretion.
Intoxication By Drugs
At one stage during the interview, Mr Williams alleged that he was intoxicated by amphetamines during the interview with Detective Smith. He was asked by Mr Anders (T54-55):
Q.When you told police that you didn’t think you were going to answer their questions, what did you mean by that.
A.I wasn’t too sure because I was off me face.
Q.When you say off your face, what do you mean.
A.I was speeding off my head.
Q.You’d consumed some speed before police went into your room.
A.I probably consumed a fair bit, yes.
Q.You’ve told police in the interview that you’ve seen that you had a smoke and then went down and had a flutter on the pokies.
A.That’s how I have a drug.
Q.Can you explain how you have your drug.
A.You put the amphetamine into a glass pipe and sit there and smoke it.
Q.You’re a heavy user of methylamphetamine, or were.
A.I was, can’t afford it, yes.
Q.You are telling us that you used methylamphetamine on that night.
A.Yes, oh yeah, straightaway.
Q.Before police came into the room.
A.Yes, yep.
Q.What does methylamphetamine do to your ability to temper your speech. Do you speak more or less when you’ve consumed methylamphetamine.
A.I gabble on a bit but, yeah, you get disillusioned in your head sometimes, too, like some things you don’t pick up properly.
HIS HONOUR
Q.What was that last bit.
A.Some things you don’t pick up properly. Like somebody will say something to you and you can’t understand how they express it.
It would seem that this is something of an afterthought on Mr Williams’s part. There is no mention of intoxication by drugs in the Rule 9 application before me. Even if there were such a mention, I reject the suggestion that Mr Williams was so affected by drugs that it would be unfair to admit the evidence of the conversation he had with Detective Smith at the City Watch House. His demeanour during the interview was exactly the same as it was in court. He showed no sign of confusion or misunderstanding of the questions during the interview. The humour and the light‑hearted banter were there in both cases. At no stage did Mr Williams suggest to the police officers during their conversations that he was affected by drugs. Neither of the police officers were asked by Mr Anders during cross-examination whether they noticed any such effect.
In those circumstances, Mr Williams has failed to establish that there would be any unfairness in the admission of the evidence of the interview between Detective Smith and him at the City Watch House on the grounds that he was intoxicated by drugs.
Conclusion
In my opinion, the evidence on the voir dire establishes that once Mr Williams’s rights under s79A of the Summary Offences Act were explained to him in clear terms by Detective Smith, he clearly understood them, as he did his right to silence which was explained to him on six separate occasions by various police officers that evening and early morning. His choices as to whether or not he wished to exercise those rights were made freely and in circumstances where there was no unfairness to him.
Accordingly, in my view, there are no grounds upon which discretion should be exercised to exclude the evidence of the interview at the City Watch House in the early morning of Friday, 7 April 2006.
The Rule 9 application is refused.