Simon Benjamin Dennis v R No. SCCRM93/336 Judgment No. 4326 Number of Pages 6 Criminal Law and Procedure Evidence Confessions and Admissions

[1993] SASC 4326

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MILLHOUSE(2) AND OLSSON(3) JJ

CWDS
Criminal law and procedure - evidence - confessions and admissions - delayed caution - whether answers prior to caution should be excluded - evident willingness of suspect to confess - no lack of bona fides by police - discretion exercised to admit evidence.

HRNG ADELAIDE, 8 December 1993 #DATE 8:12:1993
Counsel for appellant:     Mr G P G Mead
Solicitors for appellant:    Mr C A Bonnici
Counsel for respondent:     Mr P J L Rofe QC
   with Ms J M Rusalen
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a conviction by verdict of a jury in the District Court of two crimes of selling methylamphetamine. 2. At about 11.20 p.m. on 5 September 1992 two uniformed police officers, in consequence of some information which they had received, went to the Arkaba Hotel at Fullarton. The information which the police officers had received was that the appellant was selling drugs. The appellant was indicated to them by an informant and the police officers approached him. 3. The appellant agreed to accompany them outside the hotel and at the police officers' request he emptied some contents from his pockets. Those contents included $195.00 in cash. With the appellant's consent one of the police officers then put his hand into the appellant's pocket and extracted fourteen white capsules which, on later analysis, turned out to contain methylamphetamine. 4. The appellant voluntarily accompanied the police to their car some little distance away and he stated that he did not know what the capsules were and that he had found them. The appellant was uneasy about speaking to the police in the precincts of the hotel and he asked that he be driven away from the hotel. 5. He was driven in the police car to a carpark some 500 metres away. On arrival at the carpark, and without further questioning, the appellant said, "Listen, man, this bloke put me on to this stuff. I'm having a hard trot at the moment. Money's hard to come by." One of the police officers, Detective Kolesnikowicz said, "What are the pills?" He said, "Ease, Ecstasy". The police officer said, "Tell me what's going on, then?" He said, "I've been giving some away to my mates." The police officer said, "Have you sold any?" The appellant said, "Yeah, I sold two to friends and gave one away." The police officer said, "How much are you selling them for?" The appellant said, "$50.00 a capsule." The police officer said, "Show me the money that you received for them." 6. The accused produced two $50.00 notes and two $10.00 notes. The police officer then questioned the appellant further about the money which had been found and the money which the appellant had produced. He also questioned him about the number of capsules which he had and where he had obtained them. The appellant answered those questions by indicating that he had had twenty capsules and that he had obtained them from a man named Michael at a gym which he attended. The appellant then agreed to accompany the police officers back to the Adelaide police station and to go first with them to the Arkaba Hotel to speak to his brother. 7. After visiting the Arkaba Hotel the police car set off for the Adelaide Police Station. At this point the decision to arrest the appellant was taken and he was arrested and he was acquainted with his rights, including his right not to answer questions. He was told, "And you have the right to refrain from answering any further questions. I must warn you that anything you do say may be taken down and used in evidence. Do you understand that." He answered, "Yes". 8. On arrival at the Adelaide Police Station an interview was conducted and was recorded on video equipment. The appellant acknowledged that he had been acquainted with his rights and understood them. Constable Kolesnikowicz said, "I am going to ask you some further questions in relation to this matter. You are not obliged to answer them, but anything you do say will be recorded, and may be used in evidence. Do you understand that?" He said, "I do." 9. The appellant then went on to answer the questions put to him by the police officers and to furnish details of the manner in which he became possessed of capsules and his transactions in relation to them. His answers amounted to saying that he had obtained 20 capsules from the man Michael, that he had sold three of them for $50.00 each and that he had given three of them away to friends. He said that the drug was Ecstasy and that he knew it was Ecstasy. 10. The answers given by the appellant in the video interview provided details of his dealings with respect to the drugs of an incriminating nature. There was no indication in the course of the interview of any unwillingness on the part of the appellant to answer questions and to give his account of the matter to the police. 11. Objection was taken at the trial to the admission of all of the statements made by the appellant to the police on two grounds. First it was alleged that the appellant had been induced to make the confessions to the police by being told that he would be allowed to go. The police denied that and the learned judge rejected that allegation. 12. There was a hearing on the voir dire at which both police officers gave evidence and at which the appellant also gave evidence. The learned trial judge accepted the evidence of the police and rejected the evidence of the appellant. He therefore found that no inducements had been offered and he found that the statements were made voluntarily. 13. Objection was also taken on the ground that the appellant should have been cautioned immediately the police approached him or, at all events, when they discovered the capsules in his clothing. 14. The judge was asked to exercise a discretion to exclude the evidence on the ground that it had been unfairly obtained by reason of the non-administration of the caution at that time. 15. The test for determining the stage at which the caution should be administered, as appears from R v Dolan (1992) 167 LSJS 309, is whether the police have sufficient evidence to found a reasonable suspicion that the suspect has committed the offence which they are investigating, and therefore sufficient evidence to justify his arrest. At that point the investigation passes from the investigatory stage to the accusatory stage and the questioning of the suspect beyond that point is designed to strengthen the evidentiary basis for the charge of which the police officers then have evidence. 16. I think on the facts in the present case that it cannot reasonably and fairly be said that at the time the police officers approached the appellant and at the time when they discovered the capsules, they had reached that stage in their investigation. They had information which they were investigating but there is nothing in the evidence to indicate that that information came from sources which could be regarded as sufficiently reliable or, indeed even, that it was based on the personal observation of the informant or informants. 17. None of the informants were called to give evidence at the trial and there is very little information about them. In that respect this case is quite unlike Dolan's case in which the police were acting upon a complaint from a victim of a sexual offence and acting on the basis of a statement which itself provided sufficient evidence to justify the suspect's arrest. There was at that stage no admission that he was aware of the nature of the capsules. There were indications that the appellant wished to give some further explanation or information away from the hotel which could conceivably have placed his possession of the capsules in an innocent light. 18. I think that before the accusatory stage in the present case was reached, it was necessary for the police to make further inquiries. On arrival at the carpark, as I have already indicated, the appellant volunteered a statement which tended to indicate that he had been involved in illegal activity but was, nevertheless, equivocal. It was, as I have quoted:
    "... this bloke put me on to this stuff. I'm having a
    hard trot at the moment. Money's hard to come by." 19. I think that that statement did require clarification and that the police officers, as part of their inquiries, were required to endeavour to clarify it. The questions which then followed were appropriate to be asked, notwithstanding the absence of a caution up to the point at which the appellant said: "Yeah, I sold two to friend and gave one away", and indicated that he had charged $50 a capsule and produced the money. 20. I think that at that point the police clearly had sufficient evidence to justify a reasonable suspicion that the appellant had been engaged in the offence of selling drugs and had sufficient evidence to justify his arrest. I think that the caution was then required. It was, however, not administered and the police went on to ask questions in the carpark relating to the money, the capsules and the source of the capsules. 21. There was a discretion, therefore, in the learned trial judge to exclude those questions and the answers which they elicited if he saw fit to do so. His Honour spoke of exercising a discretion not to exclude any of the statements. There is, however, a degree of uncertainty in the reasons which he gave as to whether his decision was based upon a belief that the requirement for the caution had not arisen, or on an exercise of discretion to admit the statements notwithstanding failure to administer the caution at a stage when it ought to have been administered. I think it is therefore necessary for this court to look at the question of the exercise of the discretion afresh. 22. Mr Mead has urged upon us that this court should decide that the statements ought to have been excluded in the exercise of discretion for reasons of public policy. He has stressed the importance of the courts making clear to the police the necessity of administering the caution when the accusatory stage of their investigations has been reached, and that that can only be done by rejecting questions and answers which have been elicited by questions put after the accusatory stage has been reached. 23. The learned judge accepted the bona fides of the police in the present case. The police officers gave evidence that they had not decided that they had sufficient evidence upon which to arrest the appellant and that they had not made up their minds to arrest the appellant until they were in the police car and had reflected upon the answers which he had given. It is also noteworthy that this investigation took place before the decision of the Full Court in Dolan's case. 24. I see no reason to think that the police officers were not acting bona fide or that they had failed to administer the caution at the stage at which they considered they were required to administer it. I therefore do not think there is any public policy aspect to the decision in this case. 25. It remains to consider, however, whether the questions and answers which followed the point at which the caution ought to have been administered, should be excluded by reason of unfairness to the appellant. The appellant claimed in his evidence that if he had been given the caution he would not have answered the police questions. I think, however, that that is clearly negatived by what occurred. There is every indication in the course of events on the night in question that the appellant was only too willing to tell the police his version of events. His anxiety was to get away from the hotel so that he would not be observed speaking to the police, but once away from the hotel he volunteered the first statement about being put on to the stuff because money was hard to come by, and thereafter gave every indication of answering the police questions fully and freely. It is noteworthy that when the caution was administered, he proceeded to give a detailed account of his dealings and transactions in connection with the drugs. He was quite free in his incriminating answers. 26. I am satisfied on the whole of this evidence that if the caution had been administered the appellant would, nevertheless, have given the answers which he in fact gave and that he has suffered no unfairness as a result of the failure to administer the caution. 27. I might add that even if the answers given in the carpark following the stage at which the caution ought to have been administered were excluded, there would still be no basis for excluding the bulk of the video interview in which the appellant made the fullest of confessions. He was clearly cautioned at the beginning of that interview and, indeed, had been cautioned before that in the car on the way to the police station. He, nevertheless, proceeded to make a full and free confession. 28. Mr Mead argued that those answers in the video interview ought to be excluded if the earlier answers were excluded because they were inextricably bound up with them and he cited the decision of this court in R v Warner
(1988) 49 SASR 125. Warner was quite a special case on its facts and it was clear in that case that if the statement which was made after the administration of the caution were admitted but the earlier statements excluded, a fair trial of the accused would be a virtual impossibility. That is nothing like the situation in the present case. 29. I am unable to perceive that the bulk of the interview which is recorded on video equipment is in any way bound up with the earlier admissions. Certainly there are passages in the video interview which refer to the earlier admission and they would have had to be excluded on the hypothesis under discussion but, subject to that, there seems to be no problem about admitting the confessions which were freely made following the caution. 30. The appellant gave evidence that he felt obliged to make the statements which he made in the video interview because he had made the earlier admission but I am unable to follow that explanation. This was not a case in which the statements made in the video interview were by way of explanation or qualification or mitigation of what he had said earlier. They were full details of an incriminating nature of his transactions with respect to the drug. There seems to be absolutely no reason, if he did not wish to answer questions, why he should not have declined to do so when he was advised of his right to refuse to answer. 31. In all those circumstances it seems to me that there was no unfairness to the appellant in the admission of the confessions which he made to the police. The grounds of appeal therefore fail and in my opinion the appeal should be disallowed. The order of the court is that the appeal is dismissed.

JUDGE2 MILLHOUSE J I agree.

JUDGE3 OLSSON J I also agree.