Sindoni v The Queen - [2021] SASCA 138

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SINDONI v THE QUEEN
[2021] SASCA 138
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
25 November 2021
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Application for permission to appeal against conviction.
The applicant was charged with one count of arson, contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA). The prosecution case was circumstantial. The evidence adduced by the prosecution included a record of interview (ROI) between the police and the applicant, which the primary judge admitted in part.
The applicant complained that the circumstances of the interview rendered the admission of the ROI unfair. He relied on a combination of the interview proceeding notwithstanding his indicated desire to have a lawyer present before proceeding, that there was evidence he had consumed alcohol and prescription medication, and that he was tired.
The primary issue on appeal was whether in admitting the ROI, the judge made a wrong decision on a question of law as contemplated by s 158(1)(b) of the Criminal Procedure Act 1921 (SA).
Held (by the Court), granting permission to appeal but dismissing the appeal:
1. The circumstances in which the interview was conducted did not render its admission unfair. Despite expressing a desire to stop, the applicant nonetheless continued to volunteer information. The applicant’s claimed state of intoxication and tiredness was of little moment. The judge did not err in admitting the evidence of the ROI.
Criminal Procedure Act 1921 (SA) ss 158(1)(b), 158(1)(c); Criminal Law Consolidation Act 1935 (SA) s 85(1); Evidence Act 1995 (NSW) s 90, referred to.
R v King and Pitson (No 1) (1998) 199 LSJS 104, distinguished.
Hofer v The Queen [2021] HCA 36; R v Lee (1950) 82 CLR 133; Van der Meer v The Queen (1988) 62 ALJR 656; R v Swaffield (1998) 192 CLR 159; Em v The Queen (2007) 232 CLR 67; R v Davis and Quinn (No 2) [2020] NSWSC 1726; House v The King (1936) 55 CLR 499; R v Riley [2020] NSWCCA 283; R v Ostojic (1978) 18 SASR 188, considered.

SINDONI v THE QUEEN
[2021] SASCA 138
Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA

THE COURT: The issue raised on this application for permission to appeal against conviction is whether the trial judge erred in admitting a record of interview (‘ROI’) with the applicant. For the reasons explained below, when expressed in terms of the common form grounds of appeal in s 158(1) of the Criminal Procedure Act 1921 (SA), the complaint as prosecuted is necessarily that the admission of the ROI was a wrong decision on a question of law.[1]
[1] Criminal Procedure Act 1921 (SA) s 158(1)(b).
On 13 September 2021, the President referred the application to the Court of Appeal to be heard as on appeal.
Background
Yorkshire Street, Grange runs from South to North. Number 9 is on the Western side of the street. Directly to the South of number 9 is number 7, which comprises a block of four units. The two properties are separated by a fence. The driveway of each sits either side of the fence. The fence ends at the footpath and the two driveways share an apron to the road. Each property is bounded by fences; access to each is gained via its driveway.
The units at 7 Yorkshire Street number from Unit 1, closest to Yorkshire St, down the driveway to Unit 4. At the relevant time, the applicant lived in Unit 3.
Finlayson St, Grange, forms the stem of a T-junction with the Eastern side of Yorkshire St. The driveways of 9 and 7 Yorkshire Street are directly opposite the intersection between Finlayson and Yorkshire Streets. At the relevant time, the house on the North-Eastern corner of the intersection between Finlayson and Yorkshire Streets operated a CCTV camera, at its Finlayson Street frontage. The range of the CCTV camera extended over most of the shared apron of 9 and 7 Yorkshire Street and fractionally into the driveway of each. The timing of the events set out below is as recorded by that CCTV camera.
At 1:39:03am on 5 January 2019, the victim arrived home at 9 Yorkshire St, by bicycle. There was other evidence that a friend had arrived at number 9 by car a few minutes earlier and parked in the driveway. She backed out when the victim arrived, to let him through the driveway and deposit his bicycle. Having done so, the victim got into the car with his friend. They did not depart straight away, as the victim had to adjust himself in the car on account of his disability.
At 1:42:37am, the applicant arrived home in a taxi. The CCTV footage records a brief interaction between the applicant and the victim at the car, adjacent to the common apron, until about 1:44:23am. The evidence of the victim’s friend was that the applicant asked the victim repeatedly how he was going and if everything was okay. The victim responded by saying that he was fine, that everything was good, and ‘I’ll catch you later’. The friend’s evidence was that at this point, the applicant said, ‘No, you won’t’. The applicant appeared intoxicated.
The applicant then walked down the driveway of number 7, towards his unit. The victim left in his friend’s car.
The CCTV then records, at 1:47:55am, a figure wearing dark pants and a lighter top exit the driveway of number 7 with a light-coloured object in one hand. The figure walked past the end of the dividing fence and into the driveway of number 9. At 1:48:15am, a fire erupted on the front verandah of the house at number 9, the CCTV capturing the glow. At 1:48:20am, the figure can be seen returning to the driveway at number 7. The house at number 9 was destroyed.
There was evidence that accounted for the whereabouts of the other occupants of the units, including that two of them had, on their own account, been home, asleep.
The fire started on the verandah at or around a cabinet that was stored there. The victim gave evidence that the applicant had previously stored the cabinet for him. His evidence was that some months earlier, he had refused to lend the applicant money, following which he discovered the cabinet dumped across his driveway and front lawn. He moved the cabinet to the verandah, where it was at the time of the fire.
The prosecution case was that the figure seen in the CCTV was the applicant and that the light-coloured object seen in the figure’s hand was a bottle of methylated spirits that was later found at the applicant’s house. The applicant was charged with arson, contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA). He was convicted by a unanimous jury verdict.
The record of interview
The police interviewed the applicant later that morning. The interview was recorded audio-visually: the applicant was by this stage a suspect. He had not been arrested. The ROI commenced at 10:26am. Following introductory, routine questions about personal details, during which time the applicant paused so he could turn off the stove where he was cooking breakfast, the police cautioned the applicant. The extensive exchange that followed needs to be set out in full:
Q:   You don’t have to answer any of my questions, but anything you will say will be recorded and maybe later used as evidence.
A:   So so, so, she’s like um ah what it mean when you guys say something like that so it’s like I um possible cause or, or whatever.
Q:   Um I’m investigating and every possibility so that’s my job to.
A    Yeah.
Q:   Find out what’s going on.
A:   As I say before I don’t have to say anything until a lawyer or whatever.
Q:   You, basically have a right.
A:   Yeah.
Q:   Not to answer my questions.
A:   Oh ok yeah.
Q:   Ok if you want to speak to a lawyer, do you have one and we can hopefully you can contact him now and speak to him if you wish to.
A:   Yeah I don’t know, I’m not a rich person.
Q:   Yeah.
A:   I think I’ll yeah I don’t have a lawyer, whatever.
Q:   Ok do you wish to speak to a lawyer before we continue.
A:   Yeah because I don’t know what’s this.
Q:   Yeah it’s basically.
A:   I… am being framed.
Q:   Yeah, yeah, as I said it’s your right to answer or not to answer any of my questions ok.
A:   Yeah.
Q:   That is your right so it’s up to you if you want to talk to me or you don’t want to talk to me at all, ok.
A:   Yeah.
Q:   If you don’t want to talk to me we’ll stop and that will be the end of the conversation for today, for now.
This exchange reveals the following matters. First, it was the applicant who raised the prospect of not speaking with the police until he had a lawyer. He eventually indicated he wished to speak to a lawyer before continuing, ‘because I don’t know what’s this’ and then volunteered, without prompting and by way of interruption, that he was being framed. At that point, the interviewer simply reiterated the right of the applicant not to participate in the interview further.
The applicant’s next statement was also unprompted and provoked a further exchange:
A:   Yeah well the reason why I want to stop is because I know the person that this thing happens to.
Q:   What was that.
A:   The person.
Q:   Mm.
A:   That this thing happened to.
Q:   Mm.
A:   I know him.
Q:   Yeah ok.
A:   He have always been very, very like angry or jealous of me.
Q:   Mm.
Senior counsel for the applicant submitted that the first question in this exchange should be understood as eliciting a further response in circumstances where the applicant had indicated he wished to stop. However, the question, ‘What was that?’ is equivocal at best. At its highest, it is seeking clarification of the unprompted statement the applicant volunteered. The balance of the exchange is the applicant simply offering information without any prompting, notwithstanding his own stated desire to stop.
It is this character of the ongoing exchange that creates the tension between the applicant expressing a wish to stop and manifesting a wish to keep talking. The transcript does not do justice to the interview as recorded audio-visually in this regard. This is manifested most starkly in the exchange that immediately followed:
A:   So I really want to stop and if you guys are going to ask me any questions I want to have a lawyer.
Q:   Ok so you want a lawyer.
A:   Or I don’t think I’m going to say like 6 to 7 days ago I even called the police about something about this man.
Q:   Mm.
The audio-visual recording shows that the answer beginning, ‘Or I don’t think…’ took the form of the applicant talking over the top of the interviewer’s confirmation of the applicant saying he wanted a lawyer. From there, on the topic of the applicant’s recent engagement with the police, including his own arrest, and his blaming of the victim on this account, the ship had well and truly launched, with the applicant’s volunteered account punctuated only by the occasional ‘mm’ or ‘ok’ from the interviewer, with one reminder of what he had being saying when he lost his train of thought. This was not a format of question and answer.
Once the applicant had exhausted this topic, there was the following exchange:
Q: Ok, so are you ok to ask, for me to ask you questions.
A: Yeah.
There was no further caution or, for a considerable period of time, a request for a lawyer, and the interview proceeded in a more orthodox fashion. Eventually, the questions turned to the clothes the applicant had been wearing the night before. The applicant described what he was wearing, and the exchange proceeded as follows:
Q:   Do you have that here.
A:   Yeah I, I should have.
Q:   Yeah do you mind if we have a look at it.
A:   Well I don’t understand I’m sort of getting, should I phone a lawyer.
Q:   No what, what we’re doing is we’re just trying to place where everyone’s at during the night and it helps us if we can see people’s clothing to say yeah, no this persons got nothing to do with it, or this person does have something to do with it, or no one’s got anything to do with it, it just helps us understand where everybody is and what they’re doing.
The trial judge excluded the balance of the ROI from this exchange. She explained:
I accept that, at that stage, a person in the place of the accused, and having consumed alcohol and drugs at that stage, could well have misunderstood the answer by a police officer at that time that he should not phone a lawyer, and from that point, I consider that it is unfair for the interview to be led against the accused.
However, she declined to exclude the ROI up to that point, concluding:
In forming my decision, the cases to which I have been referred, in particular McDermott v King (1948) 76 CLR 501, and in particular at p.515 of Dixon J. I consider that the police have not conducted this interview improperly. I consider that they complied with the law and that there was nothing unfair in the way the interview was conducted up to the point at p.22 that I have identified already in the evidence. I am satisfied that the accused participated voluntarily in the interview. I reject his evidence that he was under duress or his will was overborne either by the police officers or the earlier experiences he had in Sicily.
Her Honour found that the interview, up to the point where the police officer asked him if it was okay to ask him any questions, took the form of the applicant volunteering information because he wanted the police to know his side of the story at the time. The applicant had acceded to a proposition to that effect in the course of cross-examination on the voir dire.
As to the moment where the police officer asked if it was okay to ask questions, and the applicant said, ‘Yeah’, the judge rejected a submission that the police had deliberately omitted to remind him that he could have a lawyer. She found that this was a reminder to the applicant that he had to consent to the police asking him further questions, and that he did so.
The appeal
The applicant did not pursue any argument on appeal that his answers in the interview were involuntary or that the police had acted with impropriety. Rather, he argued that the circumstances of the interview rendered its admission unfair. Those circumstances were that his right to silence was abrogated by the interview proceeding notwithstanding his indicated desire to have a lawyer present before proceeding, that there was evidence he had consumed alcohol and prescription medication he had not been prescribed, and that he was tired.
There was a degree of uncertainty as to whether the applicant’s argument was that the decision to admit the interview constituted an error of law as contemplated by s 158(1)(b) of the Criminal Procedure Act 1921 (SA), or some other miscarriage of justice as contemplated by s 158(1)(c). Senior counsel for the applicant appeared to rely on both. As to the latter, he identified the various aspects of the ROI that operated prejudicially to the accused. These were alleged lies told by the applicant, the revelation of the apparent deterioration of the relationship between the applicant and the victim, identification of the opportunity for the applicant to have committed the offence, his apparent disinterest in the unfolding events and his generally unsatisfactory narrative.
Assuming that these matters were prejudicial to the applicant at trial, that is only because of their probative relevance to the charge. It does not make their admission productive of a miscarriage of justice untethered from the asserted error of law in admitting the ROI.[2] The statements by the applicant that were prejudicial to his own interests were only relevant to the subsequent question, if it comes to that, under s 158(2), being the application of the proviso on the basis that no substantial miscarriage of justice has actually occurred.
[2] Compare, for example, the miscarriage of justice identified in Hofer v The Queen [2021] HCA 36 at [44] (Kiefel CJ, Keane and Gleeson JJ); [80] (Gageler J); [126]-[127] (Gordon J).
For this reason, the complaint arises properly under s 158(1)(b).
The nature of the power to exclude
The power of the Court to exclude evidence of voluntary statements obtained in circumstances of unfairness is generally described as a discretion. The High Court described it so in R v Lee.[3] In Van der Meer v The Queen, Mason CJ expressed the power in terms that indicated it to be a true discretion:[4]
In this Court the applicants must show at least that there was an erroneous exercise of the discretion and, in the circumstances of this case, that means that the trial judge erred in principle or failed to take account of relevant considerations or that the reception of the evidence was so unreasonable that it could not amount to an exercise of the discretion in accordance with principle.
[3] (1950) 82 CLR 133 at 148-149.
[4] Van der Meer v The Queen (1988) 62 ALJR 656 at 660-661 (Mason CJ).
In R v Swaffield, the plurality described the discretion as follows:[5]
In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.
[5] R v Swaffield (1998) 192 CLR 159 at [91] (Toohey, Gaudron and Gummow JJ).
Such ‘rules’ can be developed to identify whether particular circumstances in which evidence is obtained would make it unfair to adduce it. Thus, for example, it has been held that there is no unfairness in adducing evidence of a conversation with an accused recorded covertly,[6] or of conversations recorded by listening devices placed in the home of an accused when on bail for murder, subject to possible unfairness with respect to conversations on particular topics.[7]
[6] Em v The Queen (2007) 232 CLR 67 at [78] (Gleeson CJ and Heydon J); [115]-[116] (Gummow and Hayne JJ) (concerning s 90 of the Evidence Act 1995 (NSW)).
[7] R v Davis and Quinn (No 2) [2020] NSWSC 1726 at [108]-[110] (N Adams J).
The development of ‘rules’ to meet particular situations tends to focus the inquiry on appeal upon the binary question of whether or not the admission of the evidence was unfair. Expressed in the language of the discretion deployed by Mason CJ in Van der Meer,[8] that binary question can be supported by a complaint that the reception of the evidence was so unreasonable that it could not amount to an exercise of the discretion in accordance with principle. It reflects the concept of outcome error as described in House v The King.[9]
[8] Van der Meer v The Queen (1988) 62 ALJR 656 at 660-661 (Mason CJ).
[9] (1936) 55 CLR 499 at 505.
However, that is not the only possible characterisation of the power to exclude. The development of rules and principles informing ‘unfairness’ in the relevant sense raises a question of whether the unfairness discretion is truly a discretion at all, or rather a power dependent on the exercise of an evaluative judgment, capable of a single correct answer. In Em v The Queen, Gleeson CJ and Heydon J declined to address a submission that s 90 of the Evidence Act 1995 (NSW), which enacts the unfairness discretion in statutory form, did not create a discretion at all.[10] The possibility raises considerations similar to those entertained by Bathurst CJ in R v Riley,[11] when considering whether s 138 of the Evidence Act 1995 (NSW) conferred a true discretion or a power dependent on an evaluative judgment admitting of only one answer.[12]
[10] Em v The Queen (2007) 232 CLR 67 at [55] (Gleeson CJ and Heydon J).
[11] [2020] NSWCCA 283.
[12] R v Riley [2020] NSWCCA 283 at [89]-[114] (Bathurst CJ).

It is not necessary or appropriate to pursue that question further here. The applicant committed to the unfairness discretion being a House v The King-type discretion, and appropriately so in light of Van der Meer v The Queen. His complaint was squarely that when regard was had to all the circumstances of the interview, and to the body of authority that has applied the unfairness discretion in similar situations, there could be ‘no other conclusion’ than that it would operate unfairly against him.
Circumstances said to give rise to unfairness
As identified above, the applicant relied on the combination of his articulated desire to stop and the police continuing to ask questions, and his intoxication and tiredness.
On the issue of intoxication, he pointed to the decision of The Queen v Ostojic.[13] The accused in that case was charged with murder and made certain confessional statements while grossly intoxicated. The evidence was held to be admissible. Notably, the Court declined an invitation to formulate comprehensive rules to govern the admissibility of interviews with persons affected by liquor. As Wells J explained:[14]
I do not think we should make the attempt, for the simple reason that the effects of liquor vary infinitely from person to person. Furthermore, it is a mistake, in my opinion, to seize on a head of factual subject matter – the effects of alcohol, the effects of drugs, or the like – and build a special body of rules under that head. There is a danger, if this is done, of wresting a legal rule or principle away from the parent fabric of the law, and giving it an unnatural operation in order to suit the special subject matter.
[13] (1978) 18 SASR 188.
[14] R v Ostojic (1978) 18 SASR 188 at 196-197 (Wells J, Hogarth and King JJ agreeing).
Nonetheless, the Court was prepared to hypothesise about where intoxication would lead to situations where questioning should not continue.
The applicant did not submit that his intoxication was such as to reach the state of the accused in Ostojic. He submitted, rather, that this was one factor that contributed to the circumstances of unfairness. As to this, the only evidence of intoxication was his own evidence on the voir dire, when being asked to comment in cross-examination on his presentation in the audio-visual ROI:
Q:   …I suggest that when police said to you ‘Are you okay for me to ask you questions’ and you said ‘Yeah’. At that point you were okay for police to ask you questions.
A:   Yeah, of course, I was drunk, I didn’t get it really.
Q:   When did you last drink.
A:   I don’t know, in the morning, even home and Xanax. Can you see me? I can see that from my eyes and I’m talking in slow motion. I don’t even know what’s going on. I know it looks bad for me but this the truth, I’m not normal, I’m slow, I look like I’m retarded.
Q:   I think you said you drank in the morning.
A:   I drank all night even, yeah.
Q:   So when was your last drink before this interview, are you able to say.
A:   No, there must be beers there, yeah.
Q:   Were you intoxicated when you were interviewed by police.
A:   Yeah I, of course, I was.
Q:   You were.
A:   Yeah, not just of drinking because I’m on medication. I mixed them. I used to drink. I was on Xanax. I took like six tablets and drinking with that. I’m not normal. As you can see I talk slow motion. It’s not something normal myself.
The applicant’s evidence continued in this vein. It was for the trial judge to assess these answers. The applicant’s submission that the judge made a finding that he was in an ‘altered state’ overstates matters considerably. The only finding that her Honour made on intoxication was when excluding the balance of the interview once the topic turned to his clothing. This was that ‘a person in the place of the accused, and having consumed alcohol and drugs at that stage, could well have misunderstood the answer by a police officer at that time that he should not phone a lawyer…’. That did not constitute an acceptance of the applicant’s colourful self-assessment. Indeed, the judge found that at the outset of the interview, he appeared to understand the caution.
As to the continuing of the interview after the applicant had indicated a desire to stop, the applicant referred to and relied on the decision of the Full Court in R v King and Pitson, where Cox J said:[15]
Here the accused made it perfectly plain at the outset that he didn’t want to answer questions, he wanted to leave with his mate who had come there to take him away. He could hardly have made that clearer when Shearn, closing the topic with the expression: “Are you more than happy to come back in with us?”, got the very answer he didn’t want to hear: “Could we do it tomorrow? I want to get out of here.” But Shearn wouldn’t accept that – he hadn’t been waiting around in Nelson Street to be fobbed off in this fashion – so he responded with a total irrelevant observation that he had had a big day, even if Pitson had too, and he wanted to get it over with.
That was a clear rejection by the police of Pitson’s statement which told them, in effect, that he didn’t want to be interrogated. They swept that aside. If they wanted, then or thereafter, to wipe the slate clean, as it were, and get Pitson’s assent to being interviewed – and anyone can change his mind – then it had to be made unmistakeably clear to Pitson that he had a clear choice to stay or to leave, to answer or not to answer as he saw fit, without any pressure being brought to bear upon him at all.
[15] R v King and Pitson (No. 1) (1998) 199 LSJS 104 at 108-109.
Justice Cox held that from that point on, Pitson was never given an effective choice, and accepted his evidence that he felt it a waste of time arguing with the police. They were in a position to ensure they would question him, so he went along with it. Once he had then been through the procedures taking him to the interview room, the attendant psychological pressure to comply with the police wishes manifestly compromised his capacity to exercise free choice to leave.[16]
[16] R v King and Pitson (No. 1) (1998) 199 LSJS 104 at 109-110 (Cox J).
R v King and Pitson illustrates the importance of having close regard to the apparent context of the progression of the interview. In the present case, this requires watching the audio-visual record, and not simply reading the transcript. We have described above, in some detail, the progress of the interview. By contrast to R v King and Pitson, it was not the police interviewers who ‘swept aside’ the applicant’s initially stated desire not to proceed. The applicant seized the broom.
When the applicant had finished volunteering his comments about his relationship with the victim and associated observations, and the police officer then asked, ‘Ok, so are you ok to ask, for me to ask you questions?’ the officer did not raise again the topic of a lawyer. However, it was the applicant who had raised that topic in the first instance. We agree with the assessment of the trial judge that this was simply the police officer reminding the applicant that he had to consent to the police asking him questions, the exchange to that point having been one-sided.
While best practice might have recommended reiterating the right in those circumstances, the applicant was not under arrest. He was manifestly aware of his right to speak to a lawyer. The applicant having answered, ‘Yeah’, there is no manifest unfairness in the admission of what followed. The circumstances are markedly different from those in R v King and Pitson, where the police would not take no for an answer.
Moreover, when the interview turned to the topic of his clothes, the applicant indicated again his desire to stop. He was manifestly capable of doing so. He submitted that there was no difference between the position at this point and that at the commencement of the interview. To the contrary, however, his early statements of reticence were belied by his actions. The exchange on the topic of the clothes, where it was reasonable to infer that he understood the police to be saying he should not phone a lawyer, was of quite a different character.
The Court was referred to various authorities demonstrating instances of application of the unfairness discretion. The parties made submissions as to their appositeness and, in turn, points of distinction. It is not necessary to canvass these. Ultimately, this complaint must be assessed on the basis of the combination of factors upon which the applicant relies.
Conclusion
For the reasons set out above, the combination of matters relied on by the applicant did not make it unfair to admit into evidence that portion of the ROI that the trial judge admitted. The applicant’s claimed state of intoxication and tiredness was, having regard to the judge’s findings, of little moment. The audio-visual ROI places his requests to stop in a light not captured by the transcript: notwithstanding those requests, he pressed on regardless. When that ran its course, the police officer reminded him he had to consent to questions being asked, which he did. The judge did not err in admitting the evidence of the ROI.
We grant permission to appeal. We dismiss the appeal.