Sindoni v The Queen

Case [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

  1. 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).

  2. On 13 September 2021, the President referred the application to the Court of Appeal to…

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Sindoni v The Queen [2021] SASCA 138
Case
[2021] SASCA 138
Decision Date

CaseChat Overview and Summary

The applicant, Sindoni, appealed to the Court of Appeal against a decision admitting evidence of a Record of Interview (ROI) into criminal proceedings. The dispute centred on whether the circumstances under which the ROI was conducted rendered its admission unfair, thereby warranting exclusion in the exercise of judicial discretion.

The primary legal issue before the Court of Appeal was whether the trial judge erred in admitting the ROI into evidence. This required the Court to consider whether the applicant's claimed intoxication and tiredness, coupled with his expressed desire to stop the interview, rendered the admission of the ROI unfair, despite his continued participation and eventual consent to questioning.

The Court of Appeal reasoned that while the applicant had expressed a desire to stop the interview, he nonetheless continued to volunteer information. The Court found that his claimed state of intoxication and tiredness was of little significance, particularly in light of the audio-visual recording which indicated that he pressed on with providing information despite his initial requests to cease. Furthermore, the police officer had reminded the applicant of the need for his consent to questioning, which he provided. Consequently, the Court concluded that the circumstances did not render the admission of the ROI unfair and that the trial judge had not erred in admitting the evidence. Permission to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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