Steen v The Queen
[2020] SASCFC 60
•26 June 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
STEEN v THE QUEEN
[2020] SASCFC 60
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Doyle)
26 June 2020
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW - DISCRETION TO EXCLUDE
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS
On 30 December 2016, police raided residential premises at which they suspected the accused was trafficking in illicit drugs. His wallet was found to contain $550 in cash and 6.19 grams of cocaine (the “traffickable quantity” being 2 grams). He was charged with, and convicted of, trafficking in a controlled drug.
Grounds 1 and 2 of appeal concern the unsuccessful attempt at trial to exclude police questioning of the accused during the raid (the impugned evidence). No caution was given and no electronic recording was made. The prosecution relied on an alleged admission that he was unemployed, recorded only by handwritten letters “U/E” in the officer’s notebook.
Ground 5 of appeal concerns jury directions as to the nature, and use to be made of, assertions by the accused during a later electronically recorded interview at the police station that the cocaine was for personal use, that he had no intention of selling it and that he had purchased it in bulk to obtain a better price. He did not give evidence at trial and these assertions largely constituted the defence case.
Appeal allowed and re-trial ordered.
As to Ground 1:
Held per Peek J (Nicholson J agreeing):
The police officer did propose to interview the accused at the residential premises and it was reasonably practicable for the police to bring with them equipment to record the interview. Failure to at least aurally record the interview was a serious breach of s 74D of the Summary Offences Act 1953 (SO Act).
Summary Offences Act 1953 (SA) s 74D; referred.
Carr v Western Australia (2007) 232 CLR 138; Kelly v The Queen (2004) 218 CLR 216; Nicholls & Coates v The Queen (2005) 219 CLR 196; Police v Moukachar (2010) 107 SASR 450; R v Baltensperger (2004) 90 SASR 129; R v Day (2002) 82 SASR 85; R v Haydon (No. 4) [2005] SASC 18; R v Karger (2002) 83 SASR 135; R v Mekic (2004) 88 SASR 387; R v Nayda [1999] SADC 87; (1999) 203 LSJS 465; R v Pedler (2017) 129 SASR 152; R v Reid [1999] NSWCCA 258; R v Solomon (2005) 92 SASR 331; R v Vitor [2017] SADC 116; discussed.
Held per Doyle J (dissenting):
The verbal exchange between the accused and police did not amount to an interview for the purposes of SO Act s 74D.
Summary Offences Act 1953 (SA) s 74A, 74D and 74E; referred.
Carr v Western Australia (2007) 232 CLR 138; Police v Moukachar (2010) 107 SASR 450; R v Armistead [2019] SASCFC 85; R v Baltensperger (2004) 90 SASR 129; R v Solomon (2005) 92 SASR 331; R v Karger (2002) 83 SASR 135; R v Mekic (2004) 88 SASR 387; R v Dam and Nguyen (2015) 123 SASR 511; discussed.
As to Ground 2:
Held per Peek J:
This Court should proceed to exercise the discretion under SO Act s 74E(1)(b). The interests of justice did not require admission of the impugned evidence.
Summary Offences Act 1953 (SA) s 74E; referred.
Bain v Police (2011) 112 SASR 10; Commissioner of Police v Justin (1991) 55 SASR 547; Grimley v The Queen (1995) 121 FLR 282; R v Dam and Nguyen (2015) 123 SASR 511; R v Dolan (1992) 58 SASR 501; R v Hooper (1995) 64 SASR 480; R v King & Pitson (No. 2) (1998) 199 LSJS 111; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASCFC 7; R v Rockford (2015) 122 SASR 391; R v Pedler (2017) 129 SASR 152; R v Tripodi (2002) 136 A Crim R 514; discussed.
Held per Nicholson J:
This Court should not proceed to exercise the discretion under s 74E(1)(b). While it was open to the trial Judge to find that it was in the interests of justice to admit the impugned evidence, his Honour made no ruling on the issue and accordingly it will be for the trial Judge at the re-trial to consider the discretion under s 74E(1)(b) afresh.
Criminal Procedure Act 1921 (SA), see [152], referred.
Held per Doyle J:
This Court should proceed to exercise the discretion under s 74E(1)(b). The interests of justice required admission of the impugned evidence.
Summary Offences Act 1953 (SA) s 74D and 74E; referred.
R v Blayney [2002] SASC 192; R v Day (2002) 82 SASR 85; R v Karger (2002) 83 SASR 135; R v Mekic (2004) 88 SASR 387; R v Partington (2018) 132 SASR 11; R v Pedler (2017) 129 SASR 152; R v Solomon (2005) 92 SASR 331; discussed.
Held (per curiam) The decisions of a majority of the Court are as follows:
SO Act s 74D(1) applied to the impugned evidence and should have been complied with. If the prosecution wishes to press the tender of the impugned evidence at the re-trial on the basis that it should be admitted “in the interests of justice” pursuant to s 74E(1)(b), it will be necessary for the trial Judge to consider and decide that matter on a voir dire hearing, since neither the original trial Judge nor a majority of this Court have ruled on that matter. It will likely need to be an evidentiary hearing. The trial Judge will not be precluded from having regard to other exclusionary discretions at such a hearing, since neither the original trial Judge nor this Court have ruled on such matters.
As to Ground 5:
Held per Peek J (Nicholson J & Doyle J concurring):
The jury was misdirected concerning the defendant’s lines of defence such as to constitute a miscarriage of justice.
Controlled Substances Act 1984 (SA) s 32; referred.
Lorke v The Queen [2019] SASCFC 147; Mule v The Queen (2005) 79 ALJR 1573; P v The Queen (1986) 41 SASR 360; Peacock v The Queen (1911) 13 CLR 619; R v Bigeni (1990) 47 Aust Crim R 363; R v Brown (1985) 40 SASR 29; R v Newman [2011] SASCFC 36; R v Riley (1940) 40 SR (NSW) 111; R v Shimmin (1882) Cox CC 122; R v Sorgenfrie (1981) 2 Aust Crim R 404; R v Weetra (2010) 108 SASR 232; R v Williamson (1972) NSWLR 281; Spence v Demassi (1988) 48 SASR 536; discussed.
STEEN v THE QUEEN
[2020] SASCFC 60Court of Criminal Appeal: Peek, Nicholson and Doyle JJ
PEEK J: Appeal against conviction and sentence for trafficking in cocaine.
The appellant Mr George Anthony Steen (Steen) was convicted of the following indictable offence:
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984)
Particulars of Offence
George Anthony Steen on the 30th day of December 2016 at Oakden, trafficked in a controlled drug, namely cocaine, knowing or being reckless as to the fact that the substance was a controlled drug.
PART A: INTRODUCTION
On 30 December 2016, police suspected Steen of trafficking in illicit drugs at residential premises at Oakden (the Oakden premises). A number of officers raided those premises pursuant to a general search warrant. During the course of the raid, and without giving a caution, Constable Walker (Walker) asked Steen a number of questions as to his personal particulars on topics including his employment status. Steen’s reply on that topic was not recorded in any way other than by Walker making a note in his notebook: “U/E” (Walker’s abbreviation for ‘unemployed’). It is the failure to record this conversation either aurally or visually that forms the subject of Grounds 1 and 2 of appeal and I will refer to Walker’s conversation with Steen at the Oakden premises (whatever was its precise content) as “the Oakden conversation”.
The Oakden premises were searched and numerous photographs were taken. Steen was arrested on a charge of breaching bail and taken to Holden Hill police station. Steen’s wallet was found at the Oakden premises and contained $550 in cash and an amount of white powder which was later found to weigh 9.01 grams and contain 6.19 grams of cocaine (exceeding the ‘trafficable quantity’ of two grams). Later on 30 December 2016, Steen was interviewed by Walker at Holden Hill police station in relation to the cocaine in his wallet in accordance with the requirements of audio visual recording in Part 17 of the Summary Offences Act 1953 (SA) (the SO Act Part 17 requirements). In that interview, he admitted possession of the cocaine and asserted that he had no intention of selling any of it.
The conviction the subject of this appeal followed what I will sometimes refer to as the “subject trial” since there had previously been a mistrial. In both the mistrial and the subject trial, there were a number of pre-trial applications for the exclusion of items of evidence, some of which were successful. The Oakden conversation the subject of this appeal was first sought to be led in the subject trial and in his second amended Rule 49(1)(h) pre-trial application in the subject trial, the appellant sought an order “That the alleged statement by George Steen to Officer Walker regarding his unemployment be excluded”.
On 25 October 2019, District Court Judge O’Sullivan, the trial Judge in the subject trial, held a voir dire hearing and heard the submissions of Steen’s solicitor which were immediately followed by those of prosecution counsel. Immediately upon their conclusion (and without calling for any reply or adjourning to consider the matter) the Judge simply stated:
As to para.4 of the accused’s second amended notice of application, dated 24 October 2019, I dismiss the application.
His Honour gave no reasons for that ruling, either then or subsequently. The trial then commenced that same day before his Honour and a jury. Evidence of Steen’s employment status was led (over the specific defence objection) through the oral evidence of Walker and played an important part in the case. The prosecution called evidence that the value of the subject cocaine was approximately $3,600 if sold in particular portions while the defence contended that it was worth $2,700 at most if sold in ‘one hit’. But whatever the precise value was, Steen had stated in his later video interview at the police station that he had purchased the cocaine ‘on credit’ and the prosecution contended that his unemployment status was strong circumstantial evidence from which an inference could be drawn that he intended to sell at least a large part of the cocaine to pay for it since, being unemployed, he could never have otherwise paid for it. Thus, the prosecutor submitted in her closing address to the jury:
You do, however, have the evidence from Detective McFarlane about usual quantities that cocaine is bought in and that is firstly, 1 g in December 2016, as I just said, would usually fetch a price between $300 and $400; 3.5 g, between $1,200 and $1,400; 7 g for between $2,100 and $2,400; 14 g for $4,150 and $4,500 and 28 g, or an ounce, for between $7,500 and $8,000. You might think that whatever drug debt that the accused owed was beyond what an unemployed person could afford to pay back without selling some of the products. [Emphasis added]
On 29 October 2019, the jury returned a majority guilty verdict. On 5 December 2019, his Honour imposed a sentence of 4 years, 1 month and 25 days with a non-parole period of 2 years and 6 months, to commence on that day.
The amended Grounds of appeal against conviction
The amended Grounds of appeal against conviction in full are as follows.
1. The Learned Trial Judge erred in dismissing the appellant’s application, to have excluded from evidence, a conversation between Constable Walker and the appellant.
2. In the alternative to ground one, the Learned Trial Judge erred in exercising the Court’s discretion, pursuant to section 74E of the Summary Offences Act 1953 (SA), to admit the evidence of the appellant’s employment status.
…
5. The Learned Trial Judge erred in withdrawing from the jury’s consideration, the submission of defence counsel that the cocaine was purchased in one transaction to enable the appellant to obtain the benefit of a cheaper price and that the drug may be used by him on more than one occasion.
PART B: GROUND 1 OF APPEAL
In the present circumstances, at least brief reasons for the dismissal of the application should have been given by the Judge. Thus, in R v Solomon, Doyle CJ (with whom Duggan and Sulan JJ concurred) stated:[1]
35. The judge decided not to admit the evidence of the first or second conversation, but said that in the exercise of his discretion he would admit the evidence of the third conversation. Although the ruling is recorded, no explanation for the decision is given.
36. The judge should have given an explanation, although it could have been quite brief. The court should not have to speculate on a point like this. I think it likely that the judge drew the distinction that he drew on the basis that only the third conversation was recorded on audiotape. It also appears that the judge had in mind that the sole or main use of the evidence of the third conversation would be as an aid to the identification of Mr Solomon’s voice in the intercepted conversations, because when the judge gave his ruling he said that it was subject to such argument as he would later hear in relation to voice identification.
[1] (2005) 92 SASR 331.
In the absence of reasons, the appellant correctly contends that the Judge may have taken either of two pathways. First, that his Honour may have found that the Oakden conversation was not an “interview” within the Summary Offences Act 1953 (SA) (SO Act) definition in s 74D and there was no obligation to make an audio-visual record. Or, second, his Honour may have found that it was an “interview”, but was satisfied that the interests of justice require the admission of the evidence despite the investigating officer’s non-compliance (s 74E(1)(b)). Accordingly, the first two of the amended Grounds of appeal against conviction seek to deal with each respective possibility.[2]
[2] To be fair to the trial judge, he received very little assistance from the appellant’s counsel at trial (who did not appear on the appeal). While referring to SO Act Part 17, he cited literally no South Australian Supreme Court authority (let alone High Court or interstate authority). The single case to which he referred was R v Vitor [2017] SADC 116, in which a District Court Judge had excluded a conversation between a police officer and the defendant at the scene of a police search on the basis (or partial basis) that the officer clearly suspected the defendant of having committed an indictable offence and had failed to comply with the s 74D provisions. In his brief reasons on this topic, his Honour referred to only one authority, R v Haydon(No 4) [2005] SASC 18, which dealt only with the question of the requisite suspicion. (The District Court Judge in Vitor mistakenly described Haydon as a Judgment of Martin J, whereas in fact the author was Sulan J; however, the long and short of it is that Vitor dealt only with the question of suspicion, a matter that is not in issue in the present case.)
The events of 30 December 2016 in more detail
As at 30 December 2016, Detective Sergeant Corbridge (Corbridge) was a member of the “Operation Mantle team” which was an operation targeting drug related offences. In his affidavit sworn on 7 October 2017, he deposed that on the morning of 30 December 2016, prior to the raid, he had received information that two persons by the names of Cassandra Mihov and George Steen were dealing in illicit drugs at the Oakden premises. Police checks were made before the raid and revealed that first, Steen was wanted on a charge of breaching a bail agreement and secondly, a blue Subaru WRX with a certain registration number was at that time parked at the rear of the Oakden premises (that vehicle being the subject of a notice of disposal to Steen as of 12 November 2017).
On the basis of this information, a number of police officers prepared to conduct a raid and later that same morning they entered the Oakden premises in the execution of a general search warrant held by Corbridge. Corbridge described the commencement of the raid thus:
At about 11:15am on Friday the 30th of December 2016, I attended at Unit 2, 60-64 Sir Ross Smith Blvd, OAKDEN, in the company with Constables Scott TAMPALINI, Leonie LEAHY and Luke WALKER.
The occupant of the premises, Cassandra MIHOV answered the door. I entered the premises under the authority of my general search warrant. The accused, George STEEN was located in the down stairs toilet with the light off. It appeared that he was attempting to avoid police.
Constables Jonathan CHEETHAM and Scot-William CLARKSON attended and arrested STEEN in relation to a breach of bail.
The role of Constable Walker in the investigation of the appellant
Walker gave evidence at trial that he was the case investigating officer. At the time of trial in October 2019, he had been a police officer for some seven years and was attached to Major Crime Investigation Branch. As at the date of the subject incident, 30 December 2016, he was stationed at Holden Hill CIB and was a member of the “Operation Mantle team”. In his statement dated 9 February 2017, Walker described his role in the apprehension of the appellant thus:
The address was covered in cameras and the occupants took several minutes to open the door to police.
The door was eventually opened by MIHOV-NICOTODIS and the accused. The accused sat in the lounge room on a black couch whilst I obtained his personal particulars. I conducted a check of the accused which revealed[3] he was wanted for an outstanding breach of bail. The accused was arrested by CLARKSON and CHEETHAM for this matter and conveyed from the address. A search commenced under the General Search Warrant allocated to Detective Sergeant CORBRIDGE which was explained to MIHOV-NICOTODIS.
I moved into the kitchen area and commenced a search. I located a brown or dark coloured wallet on the kitchen bench near the stove. The wallet contained cash, photographic identification in the name of the accused and approximately 10 grams of a white powder in a small press resealable bag in the cash sleeve of the wallet. I retrieved the Trunarc testing device and used it to test the substance. The substance returned a positive result for Cocaine.
I informed CORBRIDGE of the location of the wallet and the contents and drove to HOLDEN HILL police station, where the accused was currently being charged for his breach of bail matter.
At about 12.09pm, I activated a video camera, gave the accused his arrest rights and conducted a record of interview with the accused. The audiotape of the interview and arrest rights has since been transcribed. [Emphasis added]
[3] There is an apparent inconsistency here between the versions of Corbridge and Walker concerning the matter of Steen being wanted for breach of bail. Corbridge makes clear in his affidavit that police were aware of this matter before the raid commenced and it would appear that the wording “revealed” [in emphasis] in Walker’s affidavit is used in an inexact manner, in the sense of confirmatory of the original police information rather than constituting first notice of the matter.
The sentence in emphasis “I obtained his personal particulars” early in the passage refers to “the Oakden conversation” and I will revert to it later. For now, I turn to the later interview at Holden Hill police station.
Walker’s interview of Steen at a police station later on 30 December 2016
Just after midday on 30 December 2016, at Holden Hill police station, Walker commenced an audio visual recorded interview of Steen in accordance with the SO Act Part 17 requirements (the Part 17 interview). There was no reference in it to the earlier unrecorded conversation concerning Steen’s unemployment status.
The Part 17 interview included reference to the findings of certain items during the search which were ruled inadmissible during pre-trial proceedings in the mistrial or the subject trial as discussed above. Copies of the recording and transcript of the interview were accordingly redacted (in a way difficult to detect) for the use of the jury in the subject trial. The agreed transcript (discretely redacted) of the interview used in the subject trial is relevant to Grounds 1 and 2 of appeal as well as to Ground 5, and is as follows:
Record of Interview between Constable Luke WALKER of Holden Hill Operation Mantle and George Anthony STEEN commenced at 1209 hours on 30 December 2016 at Holden Hill Police Station. AP 17/X78005 refers. Transcribed by ASO Akermanis.
WalkerAlright, the video recording equipment has been activated, the time is 12.09 pm on Friday the 30th December 2016. My name is Constable Walker from Holden Hill CIB.
SteenYep.
WalkerWe’re currently at the Holden Hill Police Station.
SteenYes.
WalkerCan I get you to state your full name thanks.
SteenGeorge Anthony Steen.
WalkerYour date of birth please.
Steen14/6/82.
WalkerAnd your current address.
Steen50 Carnarvon Avenue, Redwood Park.
WalkerOk. Do you agree it’s just us two in this room at the moment.
SteenYes there is.
WalkerYep. And I haven’t had a conversation about what this is about.
SteenNo.
WalkerAlright. Alright George, at about 11.17 am today we attended at Unit 2,
60-64 Sir Ross Smith Boulevard in Oakden, alright.SteenYep.
WalkerUnder the General Search Warrant held by Detective Sergeant Corbridge. You were located there and you were arrested for a breach of bail matter.
SteenMmm.
WalkerWhilst there we were conducting our search, we located a substance, a trafficable amount of illicit substance, alright, believed to be cocaine.
SteenYep.
WalkerOk. So as a result of that, that find, you’re going to be arrested for trafficking in a controlled drug. Alright.
The situation at this stage of the interview was that Steen had previously been arrested at the Oakden premises on the breach of bail matter and had been given his arrest rights then. The effect of this last question (or statement) by Walker was to inform Steen that he was also to be charged with trafficking in a controlled drug. Walker then gave Steen his arrest rights a second time and cautioned him. He then continued as follows:
WalkerAlright. As I mentioned we attended 2, 60/64 Sir Ross Smith Boulevard at Oakden today, this morning, about 11.17.
SteenYep.
WalkerHow long have you been living at that address for – staying at that address.
SteenI just stay over like here and there, yeh, but I live at Redwood Park, yeh.
WalkerAlright. But you still live at that 50 Carnarvon Avenue, Redwood Park.
SteenYeh. Yep.
WalkerSo, who lives at the Sir Ross Smith Boulevard address.
SteenCassandra.
WalkerWhat’s her surname.
SteenMihov.
WalkerOk. And what is she to you.
SteenLike just yeh, friend, partner, we’re seeing each other at the moment, but nothing, nothing, yeh, too full on. Yeh.
WalkerRight. How often do you think you stay there.
SteenOh, I’ve only stayed there the last couple of nights.
WalkerWhat sort of personal affects do you keep at Cassandra’s?
SteenI got some music equipment there, my bikes, my cars. Yeh, clothes and whatnot. Yeh. Stuff I need.
WalkerAlright. Do you use any illicit substances.
SteenYep.
WalkerYeh, what do you use.
SteenObviously cocaine, yeh.
WalkerOk. So in the house, would there have been any of those substances there.
SteenCocaine in my wallet. Yeh.
WalkerOk.
SteenThat’s for New Year’s Eve, yeh.
WalkerYeh. Yeh obviously we conducted a search, and we located a brown wallet.
Steen Yep.
WalkerOn the kitchen bench near the stove …
SteenMmmm.
Walker… in the wallet was $450 in cash.
SteenYep.
WalkerSo, there was one $100 note, six $50 notes, two $20 notes and one $10 note.
SteenYep.
WalkerThere was ID in the name of you, George Steen, your driver’s licence. And there was also about 10 grams of a white powder in the cash sleeve of the wallet.
SteenYep.
WalkerAlright. So presumptive testing of that indicated that it was cocaine.
SteenYep.
WalkerSo you said it was for New Year’s Eve …
SteenThat was the <inaudible> yeh, for me, for when, I’m going out New Year’s Eve, yeh, have a party, so … that’s what I, you wouldn’t have found anything bagged up or anything like that, I don’t sell the stuff, this is for personal use basically.
WalkerOk. How much would you use in a normal … on a normal …
SteenThree or four grams, yeh, I’d go through in a night.
WalkerOk. So three or four grams a night.
SteenMmm.
WalkerOk. How often would you have it.
SteenOh on special occasions, on birthdays and stuff like that, yeh. Too expensive otherwise.
WalkerOk. So how – do you usually buy in larger quantities or, do you – how do you usually … ? …………
SteenIn <inaudible> yeh, like that. Yeh.
WalkerHow much did it cost you for what was there.
SteenOh haven’t actually paid for it yeh, anyway, I’ve got it on sort of credit, so. Yeh.
WalkerOk.
SteenYeh <inaudible>
WalkerHow often would you use it – sorry – you said you only use it on special occasions …
SteenYeh yeh that’s right.
Walker… so when was the last time you used it.
SteenNot since last New Year.
WalkerNot since last year.
SteenYep.
WalkerOk.
SteenYou know, its tough to get as it is, yeh.
WalkerYep. At this stage that’s all we’ve located. And that’s all you’ll be charged with at this stage. Alright. So, due to the amount and circumstances it’s going be trafficking in a controlled drug, alright. Do you have anything further you wish to say.
SteenNo. …. ? …..
WalkerNo, right. Alright.
SteenIs she getting arrested.
WalkerNot that I know of at this stage.
SteenOk. Right.
WalkerAre you the only person that uses it in the house that you know of.
SteenYeh I’m the only person using it. She doesn’t touch it. Obviously she got drug tested, stuff like that, yeh.
WalkerYep. Did she know that it was there.
SteenNo.
WalkerOK. Were you planning on giving it to any – giving some to anyone else or selling any of it to anyone else.
SteenI’m not selling it at all, no, it was me – probably have it with me and my friends were gonna have some, yeh and that was about it.
WalkerBut you said you were gonna use it New Year’s Eve, where were you planning on going on New Year’s Eve.
SteenDepends, as I can’t go far, because I have to be in by 9.00 o’clock, so, probably at my brother’s house. Yeh.
WalkerOk. Are you aware that possession of illicit substances is an offence.
SteenYeh.
WalkerSo once again, do you have any further questions of me.
SteenNo sir.
WalkerAlright. The interview is now complete, it’s now 12.16 pm on Friday the 30th December 2016.
The South Australian audio visual recording regime – SO Act Part 17
The South Australian audio visual recording regime in SO Act Part 17, provides as follows:
Part 17—Recording of interviews
Division 1—Interpretation
74C—Interpretation
In this Part—
interview includes—
(a) a conversation; or
(b) part of a conversation; or
(c) a series of conversations,
but does not include an examination under the Independent Commissioner Against Corruption Act 2012;
investigating officer means—
(a) a police officer; or
(ab)an investigator under the Independent Commissioner Against Corruption Act 2012; or
(b)a person authorised under an Act to investigate offences and arrest suspected offenders.
Division 2 — Recording interviews with suspects
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 make an audio visual record of the interview, an audio visual record of the interview must be made;
(b) if it is not reasonably practicable to make an audio visual record of the interview but it is reasonably practicable to make an audio record of the interview, an audio record of the interview must be made;
(c) if it is not reasonably practicable to make either an audio visual record or audio record of the interview—
(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 an audio visual record made of the reading; and
(iii)when the audio visual recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and
(iv)if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and
(v)at the end of the reading, but while the audio visual recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and
(vi)if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the error or omission asserted by the suspect in an addendum to the record of interview.
(2)If the suspicion, or a reasonable ground for suspicion, arises during the course of an interview, the investigating officer’s obligations under subsection (1) arise at that point and apply to the interview from that point.
(3)In deciding whether it is reasonably practicable to make an audio visual record or audio record 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 an audio visual record or audio record of the interview to be made;
(d) any other relevant matter.
(4)As soon as practicable after an audio visual record or audio record of an interview is made under this Part, the investigating officer must give the suspect a written statement—
(a) if an audio visual record was made—of the right of the suspect or the suspect’s legal adviser (or both) to view the recording and to obtain from the audio visual record an audio record; or
(b) if an audio record but no audio visual record was made—of the right of the suspect to obtain a copy of the audio record.
(5)Arrangements must be made, at the request of a suspect, for the playing of an audio visual record at a reasonable time and place to be nominated by an appropriate investigating officer.
(6)A suspect must be provided, on request and on payment of the fee fixed by regulation, with—
(a) an audio record of the audio visual record of an interview with the suspect under this Division; or
(b) a copy of an audio record of an interview with the suspect under this Division.
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 Division; 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.
…
74G—Non-derogation[4]
This Part does not —
(a) make evidence admissible that would otherwise be inadmissible; or
(b) affect the court’s discretion to exclude evidence.
[Emphasis added]
[4] Immediately following s 74E, a new Division (Division 3) addresses recording interviews with certain vulnerable witnesses (sections 74EA to 74EC). One then comes to s 74G which, while appearing in Division 4 and therefore obviously applying to that division, also applies to the provisions involved in this case since s 74G addresses “This Part” being the whole of Part 17 of the SO Act.
Thus, non-compliance with SO Act Part 17 renders an interview inadmissible unless the court is positively satisfied that it is in the interests of justice to allow its admission pursuant to s 74E(1)(b). If so admitted, the court must positively draw the jury’s attention to the non-compliance and give an appropriate warning. I now turn to the provisions of SO Act Part 17 which have particular relevance to the present case.
SO Act Section 74D(1) – suspicion of commission of an indictable offence
It is a condition precedent to the application of s 74D that an investigating officer[5] suspects, or has reasonable grounds to suspect, a person of having committed an indictable offence.
[5] “An investigating officer” is defined to include “a police officer”.
Prior to the raid, the police officers, including Walker, suspected both Steen and Mihov of committing the indictable offence of trafficking in illicit drugs at the Oakden premises (as distinct from a suspicion attaching to those premises alone). The prosecution specifically conceded this at trial, on the permission hearing, and on the hearing of the appeal. Some circumstances confirmatory of that suspicion included those referred to by Corbridge: the original information that police had received; the further information gleaned as a result of police checks made in preparation for the raid; and the exercise of powers under a general search warrant to enter and search residential premises which predicated the holding of reasonable suspicion.[6]
[6] Both the power to enter and the subsequent power to search are each governed by a condition precedent that the police officer “has reasonable cause to suspect” one or more of a number of things. In relation to entry, the police apparently relied upon s 67(4)(a)(i) or (iii) or (iv); and in relation to search, upon s 67(4)(b)(ii) or (iii). Thus, s 67 SO Act includes the following provisions:
(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; …
SO Act Section 74D(1) – police officer “proposes to interview the suspect”
It is a further condition precedent to the application of s 74D that an investigating officer “proposes to interview the suspect”. In considering the meaning of this compendious phrase, several matters are important.
The first is that primary regard must be had to the compendious phrase “proposes to interview the suspect” rather than merely to the word “interview”. It must be borne in mind that a “proposal to interview” (even if it be internal and not vocalised) engages the requirements attendant upon the carrying out of that proposal (which are set out at s 74D(1)(a) to (c)). Accordingly, an officer who proposes to interview a particular suspect has a responsibility to address carefully those requirements before commencing a conversation to which the Part 17 regime may apply. I will return to this aspect below in the context of a consideration of the meaning of “reasonably practicable” in s 74D(1)(a) to (c).
A second important matter is that there is no definition of the compendious phrase “proposes to interview the suspect” but there is an inclusive definition of ‘interview’ which appears in s 74C thus:
interview includes—
(a) a conversation; or
(b) part of a conversation; or
(c) a series of conversations,
but does not include an examination under the Independent Commissioner Against Corruption Act 2012;
While ‘interview’ is here defined in the form of a noun, in s 74D(1) it is used as a transitive verb, and it must be taken to have a constant meaning. Whatever the position may be in other jurisdictions, in South Australia the word ‘interview’ is not confined to (but will obviously include) an interview attended with trappings of formality; rather, ‘interview’ is defined to include all conversations an officer proposes to have with a suspect. Those words are very clear and mean what they say. The fact that the inclusive definition goes on to also stipulate “part of a conversation” and “a series of conversations” only hammers that point home the more deeply.
The conversation Walker proposed to have with Steen at Oakden
As to the conversation that Walker proposed to have with Steen at the Oakden premises, it may be accepted for present purposes in favour of the respondent that the proposal to interview, or have a conversation with, the suspect referred to in s 74D(1) must have some nexus with the commission of the indictable offence the subject of the officer’s suspicion.
However, whatever the precise metes and bounds of that requirement may be, it is obviously satisfied here. Earlier that morning, prior to the raid, Corbridge had received information that two persons by the names of Cassandra Mihov and George Steen were dealing in illicit drugs at the Oakden premises. When they raided the premises, the police found only two persons present and the police suspected that those two persons were likely to be the persons to whom the information received earlier that morning related. However, it was of primary importance that the precise identity of those two persons found at the premises be immediately ascertained, which process would obviously be commenced by the relevant officer having a conversation with each as to their personal particulars.[7] Further, the precise identification of persons found on the premises was particularly important to officers attached to a unit such as Operation Mantle since the suspects’ presence alone in the house immediately prior to the raid would be highly relevant to proof of ‘possession’ if illicit drugs and/or paraphernalia reasonably suspected to be present were in fact found.
[7] The matter of there being powers of compulsory police questioning in relation to ascertaining the identity of a suspect (vide SO Act s 74A) is something of a red herring in this case. In most situations of compulsory police questioning, the officer will not suspect the person of having committed an indictable offence (as distinct from say a summary offence) and thus the first condition precedent to the application of SO Act Part 17 will not be fulfilled and Part 17 will not be engaged. However, when that first condition precedent is fulfilled, Part 17 will (and should) apply whether the questions the officer proposes to put are “compulsory answer”, or “non-compulsory answer”, or a mixture of both. There is simply no distinction between them to be found in SO Act Part 17 and no reason why there should be.
Quite apart from the above (which is ample to supply any required nexus), and for completeness, another reason why Walker would have considered that Steen’s likely responses in the proposed Oakden conversation might be relevant to the indictable offence of which Steen was suspected was Steen’s employment status. Officers attached to Operation Mantle would have been well aware that, particularly in drug offences investigations, the fact that a suspect is “unemployed” may be of substantial value to a prosecution. Indeed, it may attain something of a “catch 22” status in the sense that two rhetorical questions may arise. If an unemployed person without accoutrements of wealth is found with a substantial amount of an illicit drug, the question is: “How would he pay for it other than by selling part of it?” On the other hand, if an unemployed person with accoutrements of wealth is found with a substantial amount of an illicit drug, the question is: “How would he have paid for those accoutrements other than by drug trafficking?”.
Thus, it was important to ascertain Steen’s “employment status” and Walker proceeded to do just that in the Oakden conversation. But the only record Walker made of the content of that conversation concerning Steen’s unemployment status was a handwritten entry in his notebook: “U/E” signifying that, on the basis of whatever it was that he and Steen said during the conversation, he drew the conclusion that Steen was then unemployed.
However, evidence as to unemployment was an important matter and it was commensurately important that the precise conversation about “employment status” should have been at least aurally recorded. For all one knows, the actual conversation may have indicated that it would be wrong to infer that Steen was short of money and could not pay for the cocaine; or of the variety: “I was laid off last week, but I’ve got savings and an interview for a job tomorrow” and so on and so forth. The precise words used in the conversation should have been recorded electronically so that a decision might be made by a trial Judge as to first, whether the evidence should be admitted at all before a jury;[8] and secondly, if so admitted, the way in which the jury should be directed as to the weight, if any, that should be placed upon the evidence.
[8] Having regard to the broad fairness discretion and to the Christie discretion.
I will revert to the unsatisfactory nature of this evidence when discussing Ground 2 of appeal in the context of whether the Court should be satisfied that the “unemployment evidence” should be received in the interests of justice.
The meaning of “reasonably practicable” in s 74D(1)(a) to (c)
As noted above, a “proposal to interview” (even if it be internal and not vocalised) engages the requirements attendant upon the carrying out of that proposal (which are set out at s 74D(1)(a) to (c)) and an officer who proposes to interview a particular suspect has a responsibility to address carefully those requirements before commencing a conversation to which the Part 17 regime may apply. I now revert to the question of the meaning of “reasonably practicable” in s 74D(1)(a) to (c).
What is reasonably practicable is an objective matter to be pronounced upon by the Courts. What a police officer has to say on the topic will, of course, be taken into account but will in no way be determinative of the matter.
A spectrum of situations may be called in aid to assist analysis here. At one end of the spectrum, a police officer may have virtually no time to consider reasonable practicalities. To take an obvious example, if a police officer on foot patrol happens suddenly to see a person commit an indictable offence and chases and catches the person, that person may immediately blurt out something incriminating. In such a situation, the officer did suspect the pursued person of having committed an indictable offence and did propose to question him about it in due course, but compliance with SO Act Part 17 was frustrated by the suspect. In such circumstances, it would be fair to say that the situation falls under s 74D(1)(c) in that “it is not reasonably practicable to make either an audio visual record or audio record of the interview.” The consequence would be that if s 74D(1)(c)(i) to (vi) is subsequently complied with by the officer, evidence of the blurted out admission would be admissible.
By contrast, the present situation is very much toward the opposite end of the spectrum. Thus here:
-The police prepared an operation in advance and set the timetable for carrying out a raid.
-The police officers were familiar with the type of operation being undertaken and encountered no unexpected difficulties.
-The police had adequate resources with no logistical or transport difficulties.
-It is known that the police took to the scene at least one camera (many photographs were taken) and at least one Trunarc testing device (Walker asserts that he used it at the scene and obtained a positive result for cocaine).
While there is no evidence as to precisely what recording devices the police had available to them on their persons or in their vehicles at the scene, it is quite clear that it was reasonably practicable to take to the scene and use, at the least, an audio recording device.
This is not in any way to decide that it was impracticable as at 30 December 2016 to take and use audio/video recording equipment on a raid such as this, let alone that it is impracticable to do so today having regard to the advances in technology since 2016. It is sufficient to decide, as I do decide, that as at 30 December 2016 it was reasonably practicable to take to the scene and use, at the least, an audio recording device.
While there are substantial differences in the legislation throughout Australia, I do consider the views expressed as early as 1999 by Spigelman CJ and Smart AJ of the NSW Court of Criminal Appeal in R v Reid to be of assistance in this general context. Thus, Smart AJ there stated:[9]
65. Police officers attending a crime scene frequently ask those present what happened and the responses of those present often determine the future course of police investigations. An accused may make important admissions at the scene in such circumstances. The police officers may not have a pocket audio tape recorder with them. I refrain from making any general comment as to whether a judge should find a “reasonable excuse” as much will depend upon the circumstances.
66. The strongly preferable course is that, in cases of serious crime, interviews with questions asked and answers given at crime scenes be recorded by an audio tape recorder, albeit that it is a pocket one and only one recording can be made. I am assuming, based on experience, that the police and the prosecution will seek to rely on any admissions.
67. It is important that, if no adequate recording is made at the scene, the admissions alleged to have been made there and intended to be adduced in evidence are put to the accused in a fully recorded interview as early as possible for his acceptance or denial. Failure to do so would be critical unless, of course, the accused declined to participate in such an interview.
68. If the investigating police officers do not have an audio tape recorder at the scene they should, apart from essential questions, directly affecting the ongoing investigation, conduct their interviews with an accused where tape recording equipment is available if evidence of the admissions is intended to be led.
69. Attempts to circumvent s24A [sic] will not be tolerated. The stratagems so far used have included interviews at the scene or in a police car or at a police station and of the recorded [sic] in a police notebook, whether signed or unsigned. These occur before any ERISP and sometimes in substitution for an ERISP.
[9] [1999] NSWCCA 258.
And Spigelman CJ stated:
6. Smart AJ makes a number of comments as to the application of s424A and what is desirable conduct on the part of police with respect to these matters. His Honour’s remarks are based on an assumption that the prosecution will seek to rely on any admissions. Police investigations may proceed in accordance with such inquiries as they may properly pursue. However, if it is sought to tender admissions made in the course of such investigations, then the precise and rigorous requirements of s 424A must be satisfied. (Emphasis added)
In other words, as is oft observed, “useful intelligence is one thing: admissible evidence is quite another”.
I also briefly refer to the decision of this Court in R v Mekic[10] in this context. There, a Detective Yazarloo was investigating an indictable offence, suspected Mr Mekic of being involved in it and intended to interview him at a later stage. However, Mr Mekic telephoned Detective Yazarloo without warning and insisted on speaking to him, despite Detective Yazarloo’s best efforts to deter Mr Mekic from speaking. Yazarloo gave evidence culminating thus:[11]
[10] (2004) 88 SASR 387.
[11] Ibid 391-392.
Defence counsel: You knew, didn’t you, that you were entitled to caution him then and speak to him?
Det Yazarloo: Sir, had I been certain that he was in fact the person he was saying he was and even on the telephone, I mean that was the whole reason why I refused to speak about the case to him on the telephone, there was the matter of s 74D, the Summary Offences Act, there was a matter of cautioning this person if he was in fact the person who he claimed he was, and I kept reiterating to him that he should really come with his lawyer.
Defence counsel: When was it indicated that he had a lawyer in this phone call?
Det Yazarloo: Sir, the moment he said he was Zeko Mekic I told him I had nothing to say to him unless he was present at the Holden Hill Police Station with video and audio recording equipment going. He mentioned he had a lawyer. I said, ‘Well, in that case you should have your lawyer present as well’ and that was, from my memory, the gist of the conversation. He kept breaking into ‘Damir was at my house and he fought with two Yugoslavs, I had nothing to do with it’. I said ‘Look, I don’t want to hear that, I don’t want to make any comments on this, you should be here with your lawyer’ and he suggested 24 September, the Monday.
Defence counsel: How long did this call last for?
Det Yazarloo: A few minutes.
Defence counsel: How did it end, who ended it?
Det Yazarloo: I did.
Defence counsel: What did you say to end it?
Det Yazarloo: I said ‘Look, I refuse to speak to you’, words to that effect, that I actually refused to speak to him and said that I was going to hang up and I did.
Mr Mekic objected to the admission of this conversation on two bases. First, that a caution should have been given by Detective Yazarloo and secondly, that s 74D had been breached. Gray J first considered the lack of a caution and concluded thus:[12]
22. The Crown’s submission was that Detective Yazarloo had not embarked on an interrogation of Mr Mekic and therefore a caution was not required.
23. The conversation between Mr Mekic and Detective Yazarloo was initiated by Mr Mekic. Detective Yazarloo expressly stated to Mr Mekic that he did not want to discuss the matter with him on this occasion. He requested that Mr Mekic attend at the police station with his lawyer so a statement could be taken. The evidence which counsel for Mr Mekic sought to exclude was freely given to Detective Yazarloo. It was not given as a response to any question or request for information. Detective Yazarloo was not seeking to interrogate Mr Mekic. In these circumstances the obligation to caution Mr Mekic did not arise. [Emphasis added]
[12] Ibid 394.
Thus, his Honour found that Detective Yazarloo was “not seeking to interrogate Mr Mekic” in the circumstances set out immediately preceding that finding. Those same circumstances also tended towards a finding that Detective Yazarloo was not “proposing to interview” Mr Mekic for the purposes of s 74D. Thus, Detective Yazarloo did not propose to interview, or have a conversation with, Mr Mekic in circumstances where Mr Mekic had initiated the call and Detective Yazarloo was doing everything he could to deter Mr Mekic from having a conversation. Gray J stated:[13]
29. While Detective Yazarloo did have a suspicion about the involvement of Mr Mekic in the offending, and did intend to interview him later, the telephone conversation did not amount to an interview such that the requirements of s 74 were enlivened. There was no request for information made by the detective. The information proffered by Mr Mekic did not result from any questioning by the detective. The circumstances of the telephone call and the interchange between Mr Mekic and the police officer did not amount to an interview for the purposes of s 74 of the Act.
[13] Ibid 396.
It is to be emphasised that Mekic involved a very peculiar set of circumstances. In his decision in Mekic, Gray J in no way resiled from his Honour’s previously expressed views as to an expansive interpretation of s 74D; indeed, in the course of his judgment his Honour reproduced with approval his previous consideration of the purview of s 74D in R v Karger (with which Doyle CJ and Prior J agreed) and which appears below at [51].
Further, it is necessary to be very careful about such a situation. As Gummow and Callinan JJ observed in the High Court decision in Nicholls & Coates v The Queen (considered in more detail below): [14]
152. If claims by interviewing police officers, that they “did not initiate” an alleged off-camera interview were enough to constitute “reasonable excuse” for a failure to record admissions on camera, the purpose of the legislation could easily be frustrated. The decision of the Court of Criminal Appeal does leave open the possibility that police officers may choose to continue an interview off-camera (without seeking to have an accused afterwards repeat on-camera an admission then made) and seek to secure the admission of the unrecorded evidence on the basis of a contention that they believed the accused was “anxious” to speak off-camera, and that he had initiated the conversation.
[14] (2005) 219 CLR 196.
But in any event, the Mekic situation has no relevance to the present case which involved a systematic and targeted search of premises where the defendant was suspected of trafficking in illicit drugs and where he was thought to be then present, in circumstances where it was inevitable that at least some conversation would be had with Steen in the above context.
Authorities addressing the breadth of the phrase “proposes to interview”
There are a number of South Australian cases which address the breadth of the phrase “propose to interview”. Among them, in chronological order, are
R v Day;[15] R v Karger;[16] R v Baltensperger;[17] R v Solomon;[18] and R v Pedler[19] I turn to consider briefly these and other authorities.[15] (2002) 82 SASR 85.
[16] (2002) 83 SASR 135.
[17] (2004) 90 SASR 129.
[18] (2005) 92 SASR 331.
[19] (2017) 129 SASR 152.
In R v Day, Gray J (with whom Wicks J concurred) took an expansive approach to the obligations under SO Act Part 17 by reference to the purposes of the legislation. In finding that the proceedings had miscarried, Gray J stated:[20]
48. A number of official reports and inquiries and relevant recommendations about police practices and the law of criminal investigation provided the catalyst for the amending legislation to have police interviews electronically recorded. The amending legislation was intended to reduce the likelihood of disputes about the accuracy and reliability of evidence at trial and enable the courts to assess what was said, why it was said and what was meant. It was intended to reduce interview times, increase the number of guilty pleas, provided an earlier indication of guilty pleas, result in fewer police officers being required to attend court and result in shorter and more focused trials and fewer appeals.
…
50. The advantages of video-recording systems are obvious. They are accurate and provide a total recording of the event enabling a jury to assess the real merits of the evidence. The amending legislation sought to balance two conflicting interests — the thorough and efficient investigation of crime by police which often leads to the questioning of suspects and the police’s duty to treat suspects fairly. The legislation recognised that the technology existed and was relatively inexpensive, simple to operate, portable, reliable and secure. The electronic recording of police interviews was seen as the single most reliable form of corroboration. It protects the suspect from any abuse of police powers and it protects the police from unjustified allegations by suspects. [Citations omitted]
[20] (2002) 82 SASR 85.
In R v Karger, the victim was murdered in her own home in the course of a sexual attack in the early hours of 17 January 1998. Gray J (Doyle CJ and Prior J agreeing) summarised the salient facts thus:[21]
100. On the morning of 21 January 1998 Detective Crameri and another officer went to the appellant’s home. The detectives told him that they were investigating the deceased’s murder. He was cautioned. He was questioned about his use of his mobile telephone on the night of the death. He gave the detectives his mobile telephone number. The conversation was recorded on audiotape. The appellant was then taken to the police station. The interview that occurred was recorded on videotape. The appellant was told that he was a suspect. He said that he was happy to answer questions. He was cautioned again. The appellant was then asked questions about his attempts to speak with the deceased on his mobile telephone. He said that he tried to contact her a number of times but not again after that night. The appellant explained that he stored numbers, including the deceased’s number, in his telephone. The appellant was not under arrest at this time. At the conclusion of the interview he was taken to a medical officer to enable samples to be taken. He was then taken to his home. Police officers searched his bedroom in his presence. Clothing and personal items were seized and photographs were taken. The appellant produced his mobile telephone when requested. He instructed Detective Crameri how to scroll through the numbers stored in the memory Detective Crameri then scrolled through the numbers and noted the name of each person and their number. The deceased’s name and number were not found. Detective Crameri then had the following conversation with the appellant:
“Detective Crameri: ‘Damon, where is Kerry’s number?’
The appellant: ‘I took it off, I’m putting everything into alphabetical order.’
Detective Crameri: ‘When did you do that?’
The appellant: ‘After I heard that she had been murdered.’”
[21] (2002) 83 SASR 135, 162.
While the charged crime was very much more serious than here, there were some factual similarities in that the impugned admission was made during the course of the appellant’s house being searched and the respondent attempted to explain the failure to electronically record it as inadvertence. The Court again took an expansive approach to the SO Act Part 17 requirements and found that they were breached by the failure to record the impugned admission. Gray J stated:[22]
101. The detectives had a portable audiotape recorder in the police vehicle. However, this was not used at the time of the conversation or later to enable the appellant to make any comment about this conversation. The investigating officer said that at the time he was aware of his obligation to record an interview with a suspect and had done so earlier in the day. However, he said that he did not record this conversation because he thought that it was “more of a passing comment while conducting the search”. He said that he did not direct his mind to obtaining the audiotape. Later in his evidence he said that he was aware of the provisions of s 74D but that he did not give any thought to the legislation. He made notes of the conversation at about 5 pm. He said that he did not consider that s 74D applied to the conversation as he was not questioning the appellant about an indictable offence.
…
113. “Interview” is defined by s 74C to include a conversation. It follows that evidence of a conversation between an investigating officer and a suspect may be inadmissible by reason of the provisions of s 74E.
114. Counsel for the Crown was unable to identify any criteria by which an assessment could be made of whether the intended conversation was a proposal to interview. Counsel said that it was a question of fact, circumstance and degree. There was no guiding criterion. It was said that if Parliament had intended the provisions to apply to every conversation between an investigating officer and a suspect then it would have said so. It was contended that the provisions could not have been intended to apply to all words spoken between an investigating officer and a suspect and that the meaning of “interview” must necessarily be restricted.
115. There is no reason in principle why the legislative provisions should not have a broad application or why ‘interview’ as used in s 74D(1) should be accorded a restricted meaning. A broad interpretation of the definition of interview does not appear to be contrary to the legislative intention. Having regard to the mischief being addressed by ss 74C-E there is every reason to give a broad interpretation to the legislative scheme. In the event that recording equipment is not available the obligation of the investigating officer is to make a written record as soon as practicable of the conversation. There is no requirement for a verbatim record. On the ensuing videotape recorded interview the written record must be read to the suspect who then has the opportunity to point out any error or omission. Such a procedure is not unduly burdensome. It is directed towards meeting the concerns of the court in McKinney v The Queen.[23] The submission that the meaning of ‘interview’ should necessarily be restricted must be rejected.
116. A proposed conversation that relates to a relevant suspicion and to an investigation being undertaken in relation to that suspicion is an ‘interview’ within the meaning of s 74D. The investigating officer proposed to have a conversation with the appellant to further his inquiries. He was investigating the appellant as a suspect with respect to the indictable offence of murder. He was following up a matter arising from previous interviews with the appellant. It was at least a possibility that the proposed conversation may have led to the disclosure of important evidence. The fact that the investigating officer may not have appreciated this at the time is not to the point. [Emphasis added]
[22] Ibid 162-166.
[23] (1991) 171 CLR 468.
However, in the event the appeal was dismissed because, although the trial Judge had erred in his primary position that SO Act Part 17 had not been breached for the reasons stated above, his Honour had gone on to consider the discretion in s 74E(1)(b), should he be found to be incorrect in his primary position. His Honour had correctly approached the exercise of that discretion and had indicated that his alternative position was that he was satisfied that the interests of justice required the admission of the evidence and that alternative position was not overturned on the appeal.
In R v Baltensperger,[24] the Court once again took an expansive approach to the obligations under SO Act Part 17 and found that they were breached by the failure to audio/visually record an impugned admission.
[24] (2004) 90 SASR 129. The respondent did not refer to this decision.
The appellant was arrested on charges of rape at 7.40 am on 22 April 2002 and taken to the Murray Bridge Police Station. At 10.29 am a videotaped interview was there conducted by a Detective Bee. The appellant was cautioned, indicated that he did not wish to answer questions, and was taken to the cells. At about 11.49 am, Detective Bee removed the appellant from the cells and took him back to the same room where the interview had taken place for the purpose of a forensic procedure. The appellant asked ‘why’ and Detective Bee’s version of the ensuing conversation was as follows:[25]
Accused Why, I’ve been charged, haven’t I?
Det BeeYou’ve been accused of those offences. We now have to prove it beyond reasonable doubt.
Accused I will just go to court and plead guilty or not guilty.
Det Bee Well, that’s up to you, are you suggesting you will plead guilty?
Accused Well, I did it, so, yeah.
[25] (2004) 90 SASR 129, 134–135 [18].
Detective Bee did not make any response and the accused then added:
AccusedI’ve never raped anyone in my life but now I have, some of it wasn’t even like that.
At 11.54 am, immediately after the unrecorded conversation, Detective Bee conducted a second videotaped interview and attempted to engage the s 74D (1)(c)(ii) procedure. The following exchange was recorded:[26]
[26] Ibid 135-136 [19].
Det Bee: The time is 11.54 am still on Monday the 22nd of April 2002, do you agree that approximately three to four minutes ago I again removed you from the cells?
Appellant: [No audible reply]
Det Bee:Yeah, and brought you back up to the interview room. Is that correct?
Appellant:Yep.
Det Bee: Is it correct, that when we got to the interview room I said to you, what I intended to do with you now?
Appellant:Yep.
Det Bee: Anthony can I just get you please to sit up and speak up, thank you. Now upon arrival here I just explained to you that I needed to run through a couple of more things with you and then I explained to you, that I would be asking for your consent in relation to a forensic procedure, which may afford evidence to our investigation. And upon me explaining that to you, I just wish to put to you a conversation that we have just had, while the tapes were not running. Now I’ll again warn you again that you are not obliged to say anything if you don’t want to, but the recording equipment has been activated and it will record your responses. You said to me, after I had explained that, you said, Why I’ve been charged haven’t I? And I said, you have been accused of those offences, but it’s our job now to prove it beyond reasonable doubt. And you said, I’ll just go to court and plead guilty or not guilty, and I said, well that’s up to you, are you suggesting you would plead guilty?
Appellant:I didn’t mean it like that.
Det Bee:What did you mean?
Appellant: I’ve been charged and technically when I go to court and it’s like you say it plead guilty or not guilty.
Det Bee: Yeah, and I just said to you, well that’s up to you, and I said are you suggesting that you would plead guilty. And you said, ‘well I did it so yeah’. And then you later made a comment while I was writing, ‘I’ve never raped anyone in my life, but now I have some of it wasn’t even like that’.
Appellant: Technically it wasn’t rape.
Det Bee: Did you make those comments to me?
Appellant: Mm.
Det Bee: Anthony could you please sit up and speak up for me?
Appellant: No comment.
The above evidence was led over defence objection and the appellant was convicted. He appealed on a number of grounds. As to the present matter, Gray J (Doyle CJ and Bleby J agreeing) referred to his own previous statement in
R v Karger (reproduced above at [51]) and then stated:[27]27. It is evident that Detective Bee intended to have a conversation with the accused during the course of the forensic procedure interview in circumstances when she had formed the suspicion that he was guilty of the offences of rape. The provisions of s 74D were enlivened. Detective Bee was an investigating officer who suspected the appellant of having committed an indictable offence. Detective Bee proposed to ask the appellant whether he intended to plead guilty. She wanted the appellant to answer her question. In this respect, “to interview” is defined to include a conversation.
28. Detective Bee may not have expected the forensic procedure conversation to develop in the way that it did. It may not have been reasonably practicable to record that part of the conversation as it developed. However, it was common ground that the conversation took place in a video interview room. Subject only to arranging for the operation of a tape, it would appear to have been practicable almost immediately to video-record the whole conversation that Detective Bee proposed to have with the appellant. Furthermore, the confessional answers on which the prosecution relied were given in response to a question by Detective Bee. If she regarded the conversation as something merely preparatory to a more formal interview to be recorded then she should not, without going through the procedure of s 74D, have asked this question.
29. In the circumstances there was a breach of s 74D(1)(a). It follows from the terms of s 74E that the conversation that ensued at the time of the forensic procedure process relating to alleged admissions by the appellant was inadmissible. If the prosecution wished to lead the evidence, it was necessary to make an application under s 74E for the court to exercise its discretion to admit the evidence.
[27] Ibid 138-139.
This Ground of appeal was made out. A re-trial was ordered.
In the more recent decision of this Court in R v Pedler, the recording equipment malfunctioned and failed to record the conversation but the trial Judge permitted evidence of the officer’s notes and her memory of the interview to be adduced at trial. On appeal to this Court, that decision was found to be erroneous. Vanstone J (with whom Kelly and Doyle JJ concurred) stated:[28]
18. The obligation upon investigating officers to record conversation with suspects is of longstanding. The division of the Summary Offences Act 1953 (SA) which included the progenitors of ss 74D, 74E and 74F came into force early in 1996. The reasons for the introduction were, in essence, to ensure that objective evidence of admissions or incriminating statements by suspects could be presented to courts and to provide opportunity to suspects to view that evidence at an early stage.
…
21. In my view the purpose of this legislation would be subverted by allowing to stand the decision to admit this evidence. The evidence carries with it the dangers which led to the introduction of legislation of a similar ilk throughout Australia. It is not to the point that Senior Constable Zacher believed that she was complying with the Act and probably did so, insofar as having the interview recorded was concerned. It is implicit in the legislation that the obligation upon the investigating officer extends to presenting the recorded evidence of the interview to the Court. Section 74E contemplates only two situations: compliance and non-compliance with the legislation. Compliance must be taken to include presentation of a viable recording to the court. In some circumstances non-compliance may be overlooked if the “interests of justice require the admission of the evidence”: s 74E(1)(b), but it is unlikely that would be so unless the available evidence was seen to be an accurate record of the entire conversation. This case is very far from that, because the statements attributed to the appellant are not verbatim and are without context. [Emphasis added]
[28] (2017) 129 SASR 152, 156-158.
This judgment sets a high bar for evidence of the sort encountered in the present case to be admitted”. And, in my respectful view, rightly so.
I also note the decision of District Court Judge Lunn in R v Nayda which preceded each of the above cases. I respectfully agree with the following statements there made by his Honour:[29]
3. … “Interview” is defined in s74C to include a conversation. This considerably broadens what would otherwise be the meaning of “interview” and extends it well beyond a formal interrogation. It encompasses an investigating officer who proposes to have any conversation with the suspect. I can find no judicial exposition of “conversation”. The Macquarie Dictionary, 2nd revised ed, p406 defines it as an “informal interchange of thoughts by spoken word; a talk or colloquy”. It encompasses any verbal dialogue between two people where each is seeking to communicate with the other. It does not always extend to where one person merely makes a gratuitous unsolicited comment to another, but if the recipient of such a comment responds to it and pursues a dialogue in consequence of it, the comment then becomes part of a conversation.
This wide interpretation of “conversation” is consistent with the apparent purpose of the legislation. It is notorious that major difficulties have been encountered in the judicial process in resolving allegations of whether the police have “verballed” a defendant by attributing admissions to him in the course of his talking with them where there has been no other evidence of whether those admissions were made or not other than that of the police and the defendant: McKinney v R (1991) 98 ALR 577. Other legislation, similar to these sections of the Act, has been interpreted on the basis of it providing legislative safeguards against the possibility of police “verballing”: Pollard v R (1992) 176 CLR 177; Heatherington v R (1994) 179 CLR 370. It is also notorious that some instances of police “verballing” have occurred not in formal interviews, but in alleged informal discussions between police and defendants. In seeking to set up a procedure through s74D which would provide a means to establish readily whether a defendant had made an admission to police it was likely that Parliament would have intended these procedures to cover admissions made outside of formal interrogation, and within general discussions. [Emphasis added]
[29] [1999] SADC 87; (1999) 203 LSJS 465, 471-472.
As against the authorities supportive of the appellant’s position surveyed above, the prosecution seeks to rely on an obiter dictum (which did not rise above ‘a doubt’) by Doyle CJ in R v Solomon. The facts were set out by his Honour thus:[30]
32. The relevant facts are these. On 5 October 2002, as already mentioned by me, police went to a room in a hotel in Adelaide. They expected to find Mr Solomon and Mr Serkoshian in the room. They expected to find them engaged in the sale of cocaine. The police entered the room and found the two men there, with a woman. The police had their revolvers drawn. They told the three people to get down on the floor. Detective Connor searched Mr Solomon, and then told him to sit on a chair. Detective Connor saw items likely to contain drugs such as heroin or cocaine. Detective Connor then told Mr Solomon his name, and asked Mr Solomon his name, and Mr Solomon identified himself. This conversation, which I will call the first conversation, was not recorded. Detective Connor remained with Mr Solomon while other detectives dealt with the other two people who had been in the room. Detective Connor then told Mr Solomon that he would speak to him “on tape” in the bedroom, to which Mr Solomon made a brief response. The conversation was not recorded. I will refer to this as the second conversation.
33. Detective Connor and Mr Solomon then went into the bedroom, where Detective Connor spoke with Mr Solomon for about four minutes. The conversation was recorded on a tape recorder. I will refer to it as the third conversation. He obtained personal details from Mr Solomon, told him he was under arrest for possession of cocaine for the purposes of sale and supply, and informed him of his rights. On several occasions Mr Solomon said that he did not understand what was going on, and made the point that he had no cocaine in his possession.
[30] (2005) 92 SASR 331, 341.
The trial Judge excluded evidence as to the first and second conversations and admitted the third conversation which was aurally but not visually recorded. The only appeal was that of the defendant against the Judge’s decision to admit the third conversation. The Court dismissed that appeal on a conventional basis that the Judge had been correct in being satisfied that the interests of justice required the admission of the evidence despite the investigating officer’s non-compliance pursuant to s 74E(1)(b).
However, in the course of his judgment, Doyle CJ made an obiter comment concerning the first and second conversations thus:[31]
34. The judge appears to have considered that each conversation was an interview, or part of an interview for the purposes of s 74D of the Summary Offences Act, and that it was reasonably practicable to record each conversation on videotape as required by s 74D(1). In other words, the judge seems to have formed the view that Detective Connor had not complied with the requirements of s 74D, and accordingly each conversation or interview was inadmissible unless, as provided by s 74E(1)(b), the judge was satisfied that “the interests of justice require the admission of the evidence despite the investigating officer’s non-compliance”.
…
37. I doubt whether the first conversation and the second conversation amounted to an interview for the purposes of s 74D. Neither of them was an interview in the ordinary sense of the word. Nor is there any link between the first two conversations and the third, by which I mean that the purpose and content of the first two interviews differed from the purpose and content of the third interview. [Emphasis added]
[31] Ibid 341-342.
There was no analysis other than these five lines in emphasis. His Honour then went on to hold:
37. … Be that as it may, it was open to the judge to exercise his discretion in relation to the third conversation, or in relation to the third part of the series of conversations, if they constituted a series. I do not accept that, when there is a series of conversations, the discretion to admit despite non-compliance with s 74D(1) can be exercised only in relation to the series as a whole.
With respect, I agree with that last holding; and indeed with his Honour’s later ultimate holding that it was open to the Judge to find that “the interests of justice require the admission of the evidence despite the investigating officer’s non-compliance” in circumstances where the aural recording was clear and distinct and there was no reason to think that a visual recording would have added any further information.
And so, it is just the five lines in emphasis in Solomon at [37] (reproduced above) with which I respectfully disagree; and even there, it is to be noted that his Honour merely ‘doubted’ the view of the trial Judge that the first two conversations were within s 74D rather than expressing a firm view that they were not. I simply observe that within those five lines his Honour said of the first two conversations that “Neither of them was an interview in the ordinary sense of the word” but I would respectfully say that they did not have to be, since ‘interview’ is specifically defined to include conversations that would not be an interview in the ordinary sense of the word.
I consider that in Solomon, the police officer did suspect at the relevant time that Solomon had committed an indictable offence and the officer did propose to interview him in the extended definitional meaning of having a conversation with him. I consider that the preponderance of authority in South Australia supports the view that in those circumstances the s 74D obligation was engaged (subject always to a finding that “the interests of justice require the admission of the evidence despite the investigating officer’s non-compliance”).
A trilogy of High Court decisions
There are three fairly recent decisions of the High Court concerning inter-state legislation requiring audio visual recording of conversations between police officers and suspects. None directly address the precise question concerning the South Australian legislation now before this Court but all are of some background assistance.
The first of the trilogy, Kelly v The Queen,[32] concerned the meaning and scope of the phrase “in the course of official questioning” in the Tasmanian legislation. The defendant underwent a videotaped interview in which he made certain exculpatory statements; the interview was concluded and he was returned to the cells. Less than an hour later, the defendant, while being taken to a hospital for a blood sample to be taken, made statements to police officers (not videotaped) which indicated that his exculpatory statements during the videotaped interview had been false. It was held by a majority of the High Court (Gleeson CJ, Hayne and Heydon JJ) that the later statements made by the accused while being taken to the hospital were not made in “the course of official questioning” and accordingly were not inadmissible for want of being videotaped.
[32] (2004) 218 CLR 216.
Apart from addressing the language peculiar to the Tasmanian legislation, considerable attention was devoted to the more general history and development of remedial legislation concerning the proof of confessions and admissions alleged to have been by suspects to police officers.[33]
[33] See the joint Judgment of Gleeson CJ, Hayne and Heydon JJ at [22]–[40]; McHugh J at [86]–[97]; and Kirby J at [136]–[137].
The second of the cases, Nicholls & Coates v The Queen,[34] involved the Western Australia Criminal Code. Section 570D(2) provided that, on the trial of an accused for a serious offence, evidence of any admission by the accused to a member of the police force should not be admissible unless:
(a) the evidence was a videotape on which was a recording of the admission; or
(b) the prosecution proved, on the balance of probabilities, that there was a reasonable excuse for there not being a videotape of the admission; or
(c) the court was satisfied that there were exceptional circumstances which, in the interests of justice, justified the admission of the evidence.
[34] (2005) 219 CLR 196.
Section 570D(4) set out four matters which were said to constitute ‘‘reasonable excuse’’, the one under consideration being that the accused did not consent to the interview being videotaped. This in turn raised a question of what was meant by “the interview”. Did it, or did it not, include unrecorded breaks during the recorded interview?
By majority (McHugh, Gummow, Kirby and Callinan JJ), Coates’ appeal was allowed on the basis that “the interview” did include the unrecorded breaks and that it could not be established by the prosecution that the defendant did not consent to the entire interview in that sense being videotaped. McHugh J approached the matter thus:[35]
102. Both the natural and ordinary meaning of “interview” and the purposive construction of s 570D favour interpreting that term in s 570D(4) to cover the entire time during which Coates spoke with and was questioned by the police. The term “interview” is used only in s 570D(4): the rest of the section refers to “any admission” or “the admission” or “an admission” without specifying that the admission must be made in the course of an interview, that is, without designating the occasion of the admission. The policy of the section is that no admission is admissible unless it falls within one of the three paragraphs in s 570D(2). Paragraph (b) – the reasonable excuse exception – is the relevant exception in the present case. That paragraph declares that “evidence of any admission ... shall not be admissible unless ... the prosecution proves ... that there is a reasonable excuse for there not being a recording on videotape of the admission”. Reasonable excuse includes that the accused “did not consent to the interview being videotaped.”
103. The natural meaning of “interview” in s 570D is the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a “serious offence”. It is unlikely that the Legislature in using the term intended it to mean each separate question and answer or statement made on a particular occasion, so that each such question and answer or statement constituted an “interview”. It seems absurd to think that the Legislature intended the occasion of Coates’ interrogation to constitute at least four separate interviews, consisting of two videotaped interviews and two unrecorded interviews during the toilet breaks.
104. A purposive construction also supports interpreting “interview” to mean the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a “serious offence”. Such a construction assists in having a record of the entire discussion between the police officer and the accused on a particular day at a particular place instead of records of parts of the discussion. In accordance with the policy of the section, it also reduces – although it cannot eliminate – the occasions for disputes between accused persons and police officers as to what was said in “interviews”, particularly interviews at police stations. A purposive construction also provides an incentive to police officers to have off camera admissions recorded or at all events referred to when recording resumes.
105. Hence, by interpreting “interview” to cover all exchanges between Coates and the police while he was under caution, s 570D applies to the times when filming was suspended. Because Coates did not withhold consent to the entire series of exchanges being videotaped, his refusal to consent to some of the exchanges being videotaped (if he did) did not fall within the meaning of “reasonable excuse” as defined in s 570D(4)(c).
[35] Ibid 239-241.
In my view, the defence case did not involve impermissible speculation. Rather, Steen made various assertions in the SO Act Part 17 interview as follows.
-First, he stated that he intended not to sell any of the cocaine; that was not speculation but rather a statement of the intention that he held at the relevant time, being the date of possession on 30 December 2016 as charged in the Information.
-Secondly, he stated that he had bought the cocaine in one lot because it was hard to get and it was cheaper to do so; that was not speculation but rather a statement of past fact and his explanation of it.
-Thirdly, he stated that he had several options as to how he might use the cocaine: he might use it all himself over several special occasions, or he might share it with friends on the upcoming special occasion of New Year’s Eve. Again, there was no speculation concerning the important matter of an intention to sell and his intention not to sell never wavered. His talk about how he might use or dispose of the cocaine was no more than to delineate a range of options, each consistent with his stated fixed intention not to sell any of it.
Looking at the impugned directions in the context of the whole of the summing up and the issues in the case, I conclude that Ground 5 of appeal is also made out. The jury was misdirected such as to constitute miscarriage of justice in circumstances where the proviso would not be applicable.
Disposition
I would allow the appeal, set aside the conviction and sentence and order a re-trial at which the evidence concerning Walker’s conversation with the appellant concerning his employment status is not to be led.
Addendum
I have read the judgments of Nicholson and Doyle JJ. I add the following passage with which their Honours agree.
The decisions of a majority of the Court are as follows. Summary Offences Act 1953 s 74D(1) applied to the impugned evidence and should have been complied with. If the prosecution wishes to press the tender of the impugned evidence at the re-trial on the basis that “the interests of justice require the admission of the evidence” pursuant to s 74E(1)(b), it will be necessary for the trial Judge to consider and decide that matter on a voir dire hearing, since neither the original trial Judge nor a majority of this Court have ruled on that matter. It will likely need to be an evidentiary hearing. The trial Judge will not be precluded from having regard to other exclusionary discretions at such a hearing, since neither the original trial Judge nor this Court have ruled on such matters.
NICHOLSON J: I have had the advantage of having read the judgments in draft of both Peek J and Doyle J. I agree with both that the appeal should be allowed, the conviction quashed and a retrial ordered on the basis of appeal ground 5.
As far as appeal ground 1 is concerned, the relevant legislative provisions and authorities analysing the same have been summarised by both Peek J and Doyle J in terms with which I do not disagree. However, and with great respect to Doyle J’s approach, I agree with Peek J that subsection 74D(1) of the Summary Offences Act 1953 (SA) (“SOA”) should have been complied with in this case.
In my view, the potential materiality of the answers to the questions concerning name, address and employment status, as explained by Peek J, meant that the questions had a sufficient nexus to the suspicion held by Constable Walker from the outset. The “Oakden conversation” as Peek J has called it was an interview for the purposes of subsection 74D(1) of the SOA. As such, Constable Walker was “propos[ing] to interview the suspect [the appellant]” from the outset.
I make two further observations. First, I agree with Peek J[68] that the fact that the appellant was obliged to answer some or all of the questions asked is a “red herring”. As his Honour has pointed out, a police officer can ask such questions as he or she wishes. However, any answers provided, including to questions a person is obliged by section 74A of the SOA to answer, will only be admissible in evidence provided that Part 17 of the SOA (where applicable) has been complied with.
[68] See his Honour’s judgment at footnote 7.
Second, it certainly is not the case that any of the questions such as those asked by Constable Walker always or necessarily will invoke the requirements of Part 17. It will be a matter of fact and degree in each case. It may be thought that this will place investigating police in a difficult position in not being able to easily determine for any given situation whether they are proposing to embark on an interview or not. However, this follows from the terms of the legislation and the authorities that have interpreted it as discussed by Peek J and Doyle J. The police will be in this position whether the application of the law to the facts of this case is as that analysed by Peek J or by Doyle J.
To my mind, the legislature has provided and intended for an extremely expansive definition of “interview”. The police acting prudently should draw their “bright line” as to when a conversation will constitute an “interview” conservatively. Given the ready availability, in the modern day, of sophisticated and reliable, portable audio and visual recording equipment (even if only by way of a police body camera or a mobile phone) such a conservative approach cannot be seen as unnecessarily burdensome when the policy and purposes underpinning Part 17 are considered. Of course, there always will be occasions where spontaneity or other circumstances render video recording not possible or impractical but there are other aspects of Part 17 intended to accommodate such situations.
As far as appeal ground 2 is concerned, I agree with the analysis of Doyle J. On the information available to the trial Judge, it would have been open to the Judge to admit the impugned evidence in the exercise of the discretion available under subsection 74E(1)(b) of the SOA, notwithstanding any failure to comply with section 74D.
However, as Peek J has noted, we have no understanding of the basis on which the appellant’s application to have the evidence excluded was decided favourably to the prosecution. The fact that the Judge did not give the jury the obligatory warning required by subsection 74E(2) of the SOA might suggest that the Judge saw no need to consider admitting the evidence pursuant to the discretion provided for by subsection 74E(1)(b).
In any event, there is no ruling by the Judge on this issue. As such, at any retrial, it is difficult to see how, in practical terms, section 132 of the Criminal Procedure Act 1921 (SA)[69] would operate to constrain the Judge hearing the retrial from considering the discretion afresh. Any such consideration would be based on the evidence and submissions then put before that Judge should any application be made by the prosecution for the discretionary inclusion of the evidence in question, notwithstanding the non-compliance with subsection 74D(1) as Peek J and I have found.
[69] Section 132 provides as follows:
A determination or order made by a judge of the superior court in proceedings dealing with charges laid in an information is binding on a judge of the court presiding at the trial of the defendant, whether the trial is the first or a new trial following a stay of the proceedings, discontinuance of an earlier trial or an appeal, unless—
(a) the trial judge considers that it would not be in the interests of justice for the determination or order to be binding; or
(b) the determination or order is inconsistent with an order made on such an appeal.
DOYLE J: I have read the draft reasons of Peek J, and gratefully adopt his summary of the background relevant to the determination of the appeal.
I agree with Peek J that ground of appeal 5 has been made out, and with his reasons for so holding. In short, for the reasons given by his Honour, the practical effect of the impugned direction was to withdraw from the jury’s consideration, on the basis that it was impermissible speculation, a legitimate and significant aspect of the defence case. I am satisfied that this occasioned a miscarriage of justice, and hence that the appeal should be allowed.
However, I have reached a different conclusion in relation to grounds of appeal 1 and 2, which relate to the admissibility of evidence of the ‘verbal exchange’[70] between Constable Walker and the appellant in which the latter stated that he was unemployed. These grounds raise two issues.
[70] I have adopted the labels of ‘verbal exchange’ or ‘exchange’ in these reasons as neutral descriptors of what occurred; that is, so as to avoid using the labels of ‘interview’ and ‘conversation’ used in the legislation.
The first issue is whether the verbal exchange was an interview for the purposes of s 74D of the Summary Offences Act 1953 (SA). In my view, it was not an interview. The second issue is whether, even assuming it was an interview, the interests of justice nevertheless required admission of Walker’s evidence of that exchange. In my view, the interests of justice did require admission of that evidence.
As I have decided the appeal should be allowed on ground 5, my views on grounds 1 and 2 are not relevant to the outcome of the appeal. However, in case they become relevant on a retrial, it is appropriate that I set out my reasons for reaching the conclusions that I have on those grounds. I can do so in relatively brief terms given that the relevant legislation and authorities have already been reproduced and summarised in the reasons of Peek J.
The legislation and its purpose
Sections 74D and 74E of the Summary Offences Act govern the admissibility of evidence of interviews of persons suspected of having committed an indictable offence.
Those provisions have been reproduced in the reasons of Peek J. In short, s 74D requires that an investigating officer who proposes to interview a suspect must, if it is reasonably practicable, make an audio visual recording of the interview (s 74D(1)(a)); or, if that is not reasonably practicable, make an audio recording of the interview (s 74D(1)(b)); or, if that is not reasonably practicable, make a written record of the interview and then make an audio visual recording of it being ‘read back’ to the suspect (s 74D(1)(c)).
Subsection 74D(3) provides guidance as to the considerations relevant to deciding whether it was reasonably practicable to make an audio visual or audio recording. And ss 74D(4)-(6) provide for the suspect to be promptly informed of their right to view or obtain the recording, and for the exercise of that right.
Section 74E governs the admissibility of evidence of an interview in proceedings for an indictable offence. Under s 74E(1), evidence of an interview of the defendant is inadmissible against the defendant unless either the investigating officer conducting the interview complied with the recording requirements referred to above (s 74E(1)(a)), or the court is satisfied that the interests of justice require the admission of the evidence (s 74E(1)(b)).
The purpose of these provisions, and the mischief they are intended to address, is obvious and has been canvassed at some length in the reasons of Peek J, and the authorities to which he has referred. In essence the provisions are intended to ensure the availability of objective evidence of admissions or incriminating statements by suspects, both for its early provision to suspects and for its ultimate presentation in court. The provisions are thus intended to reduce the scope for, and likelihood of, disputes about the accuracy and reliability of evidence of admissions and other incriminating statements, with consequential benefits both for the fair and efficient conduct of trials and for the administration of justice more generally.
Ground 1: was the exchange between Walker and the appellant an interview?
There is no dispute that the police officers in the present case, and in particular Constable Walker, held the relevant suspicion at the time they attended the Oakden premises. The application of the recording requirements of s 74D thus turned upon whether the initial verbal exchange between Walker and the appellant (involving the five questions and answers recounted in the reasons of Peek J) was an “interview”.
I observe in passing that, strictly speaking, s 74D applies in circumstances where the relevant police officer “proposes to interview” the suspect, and requires compliance with the recording requirements in respect of that interview. However, in circumstances where it may be inferred that Walker anticipated, if not intended, to have the verbal exchange which he did with the appellant, I do not think that the reference to “proposes to interview” affects the analysis. I also do not think that the mere fact that Walker likely proposed to formally interview the appellant at some point after his arrest triggered the operation of s 74D(1) recording requirements in respect of the initial exchange he had with the appellant. While a proposal (or intention) to conduct a formal interview in due course may form part of the overall circumstances relevant to a determination of whether the initial exchange was an interview, the recording requirements only applied to that initial exchange if it was itself an interview (or at least part of the one overall interview) that Walker proposed to have.
I also observe that “interview” is defined in s 74C to include a conversation, part of a conversation, or a series of conversations.
Bearing in mind both the purpose of s 74D, and the inclusion of conversations within the definition of an interview, I accept that “interview” should be given a broad meaning. It is not to be confined to formal or lengthy interviews. It may include verbal exchanges between a police officer and suspect even though they may be quite casual or informal in nature, and quite limited in content or duration.
All of that said, I do not think that every verbal exchange between a police officer and suspect, regardless of its nature and content, constitutes an interview for the purposes of s 74D. I do not think that achieving the evident purpose of ss 74D and 74E, or the definitional provision to which I have referred, require that the concept of an interview be construed that broadly. In my view, there may be words exchanged between a police officer and suspect which fall short of an interview, or which do not warrant characterisation as an interview.
In my view, the words ‘interview’ and ‘conversation’, when considered in their legislative context, both connote something more substantial or purposeful than the mere fact of a verbal exchange between two people regardless of its nature and content. I accept that the legislative purpose suggests a low threshold for a verbal exchange to qualify as an interview, and appropriately so. But I consider that the terms of the section nevertheless leave open the possibility of a verbal exchange that by its nature does not attract the recording requirements of s 74D (despite the existence of the relevant suspicion).
[73] R v Karger (2002) 83 SASR 135 at [116].
While the authorities to which Peek J refers support a broad approach to the concept of an interview, none goes so far as to exclude this possibility. As Peek J acknowledges, the obiter observations of Doyle CJ (Duggan and Sulan JJ agreeing) in R v Solomon[71] support the existence of such a possibility. The reasons of Gray J in both R v Mekic[72] (Bleby and Sulan JJ agreeing) and
R v Karger[73](Doyle CJ and Prior J agreeing) also support the existence of such a possibility; the former does so expressly, the latter does so implicitly.
[71] R v Solomon (2005) 92 SASR 331 at [37].
[72] R v Mekic (2004) 88 SASR 387 at [29]
The inclusion of conversations (or part thereof) within the meaning of an interview was obviously intended to ensure that a lack of formality or length not be a barrier to a verbal exchange being characterised as an interview. However, the use of the term “interview”, and the legislative context in which it is used in s 74D, nevertheless suggests that there must be some nexus between the verbal exchange and the suspected indictable offence for it to be characterised as an interview. The legislation contemplates a verbal exchange that may be relevant to the proof of that indictable offence.
In R v Karger,[74] after suggesting the need for the nexus to which I have referred, and in characterising the exchange in that case as an interview, Gray J described the proposed conversation as one that related to the relevant suspicion and the investigation of that suspicion; and one that the investigating officer proposed to have in order to “further his inquiries” and by way of “following up a matter arising from previous interviews with the appellant”.
[74] R v Karger (2002) 83 SASR 135 at [116].
In my view, the determination of whether a verbal exchange is to be characterised as an interview for the purposes of s 74D requires consideration of the context, purpose and content of the relevant verbal exchange. If the exchange is one that is calculated, or has the potential, to be of some evidential significance, or to otherwise further the investigation of the relevant suspicion, then it will likely be characterised as an interview, even if quite fleeting or informal in nature. On the other hand, an exchange that is preliminary or introductory in nature, and not directed towards, or likely to serve, any forensic purpose, may not warrant characterisation as an interview. An exchange that is focussed, for example, merely upon ascertaining the identity or contact details of persons present, information about the relevant physical surrounds, or other information of a logistical or administrative nature, is unlikely to warrant characterisation as an interview triggering the recording requirements of s 74D.
In my view, it would be enough to trigger the recording requirements of s 74D that the exchange is objectively characterised as an interview; the police officer need not subjectively intend or appreciate that their exchange have this character. On the other hand, if an officer has a subjective intention of eliciting information likely to be of evidential value, then this would in all likelihood suffice to give the exchange the character of an interview. In summary, the issue will turn upon a consideration of the context, purpose and content of the exchange in the light of all of the facts and circumstances of the particular case.
Turning to the exchange in the present case, the relevant passage from the affidavit of Constable Walker tendered on the voir dire has been extracted in the reasons of Peek J. There was no request that Constable Walker be made available for cross-examination, and his evidence was not otherwise the subject of any challenge.
On that evidence, the exchange between Walker and the appellant occurred upon the commencement of the search. It involved Walker asking the same five questions which it was his practice to ask of a person present at any premises when entering them for the purposes of a lawful search; that is, questions asking the person their full name, their date of birth, their current address, their best contact number and where they are currently working. Walker said that this information as to a person’s particulars was for use not only in identifying the person but also in conducting police checks on the person in order to ascertain whether there were any relevant warnings associated with them or of which he or other police officers should be aware.
The five questions sought information bearing a close resemblance to the “personal details” that a police officer may require a suspect to state under s 74A of the Summary Offences Act. While it is true that this section does not empower a police officer to require that a suspect state their best contact number, I do not think a question requiring a suspect to state where they are currently working[75] goes beyond the power under that section to require that they state their business address. That said, I do not think it ultimately matters whether or not the questions asked by Walker went beyond an attempt to obtain the personal particulars required to be stated by a suspect under s 74A. A police officer, like any person, is entitled to ask questions going beyond those designed to elicit a suspect’s personal particulars.[76] The issue in this case is not whether Walker had power to ask the questions he did, for he plainly did. Rather, it is whether by engaging in the exchange he did, he conducted an interview for the purposes of s 74D.
[75] This being the form of question that was asked, based on the evidence of Walker as to his usual practice.
[76] Police v Moukachar (2010) 107 SASR 450 at [13]; R v Dam & Nguyen (2015) 123 SASR 511 at [26]; R v Armistead [2019] SASCFC 85 at [89].
In my view, on the evidence in this matter, and having regard to its context, purpose and content, the exchange between Walker and the appellant stopped short of an interview.
The context of the exchange was that it occurred during a lawful search of a premises from which it was suspected that the appellant and another were trafficking in drugs. Importantly, it occurred at the outset of that search, upon Walker first coming across the appellant. The context was thus akin to the first and second conversations in R v Solomon,[77] and somewhat removed from cases such as R v Karger,[78] R v Baltensperger[79] and Carr v Western Australia,[80] where the exchanges occurred at a significantly later stage in the process and indeed after the suspect’s arrest and formal interview. In R v Karger the exchange was by way of following up on a matter arising from the earlier formal interview;[81] in R v Baltensperger the exchange occurred in the video interview room and included the police officer asking the suspect whether he was going to plead guilty;[82] and in Carr v Western Australia the exchange involved a “patient and deliberate sequence of questions and answers designed to elicit admissions”.[83]
[77] R v Solomon (2005) 92 SASR 331 at [37].
[78] R v Karger (2002) 83 SASR 135.
[79] R v Baltensperger (2004) 90 SASR 129.
[80] Carr v Western Australia (2007) 232 CLR 138.
[81] R v Karger (2002) 83 SASR 135 at [116].
[82] R v Baltensperger (2004) 90 SASR 129 at [27].
[83] Carr v Western Australia (2007) 232 CLR 138 at [50].
As to the purpose of the exchange, there is no evidence that the purpose was any more than as stated in Walker’s affidavit; that is, to obtain the appellant’s particulars in order to identify him and carry out the searches mentioned. There is no evidence to suggest, and it was not suggested to Walker, that the purpose of the exchange was to elicit information that was considered likely to be of evidential significance in relation to the suspected offending. It is important in this context to have regard to the way in which counsel for the appellant conducted the voir dire. Walker’s evidence was to the effect that the questions he asked were the standard ones that he always asked of a person present at a premises being searched. Defence counsel did not seek to cross-examine Walker so as to suggest, for example, that his questioning had been supplemented or tailored so as to elicit information that might be of relevance to the particular offending of which the appellant was suspected (that is, drug trafficking); or even that his practice was unique to, or developed in the context of, the investigation of suspected drug offending.
As to the content of the exchange, on the evidence at the voir dire, it did not go beyond the questions I have mentioned, and direct answers to those questions. While the answer to the final question was to the effect that the appellant was unemployed, this was a direct response to the question asking him where he was currently working. The exchange did not go beyond questions apparently directed towards ascertaining the personal details (that is, by way of identification and contact details) of the suspect. This was not a case of the police officer embarking upon an exchange with a view to seeing where or how far it might lead. The purpose and content of the exchange was confined in the manner described.
While the above considerations point towards the exchange falling short of an interview, I do not overlook the objective consideration that in a matter involving a suspicion of drug trafficking it is possible that the mobile phone number and employment status of the suspect may take on an evidential significance that they may not be expected to take on in some other types of offending. While there is no evidence to suggest that this was within the subjective contemplation of Walker, or that the exchange was calculated to obtain material of evidential significance or to further his investigation of the suspected offending, I accept this was an objective possibility. The issue is whether this objective possibility was sufficient to transform what, in my view, would ordinarily be considered a preliminary exchange falling short of an interview, into an interview. In my view, in the absence of any reason to think that the exchange was calculated to elicit anything more than the usual personal particulars that a police officer might require for the reasons given by Walker, I do not think the exchange in the present case should be characterised as an interview for the purposes of s 74D of the Summary Offences Act.
In light of my conclusion that the exchange between Walker and the appellant was not an interview, there was no requirement under s 74D that it be recorded. It follows that the failure by Walker to make an audio visual or audio recording, or indeed to later read back to the appellant the written record that he made of the exchange, was not an obstacle to the admissibility of Walker’s evidence as to the exchange.
However, and at the risk of stating the obvious, nothing I have said should be taken to discourage the use of audio visual recording equipment in situations such as the present. Given the ready availability of such equipment, prudent policing will often favour the recording of exchanges such as the present one to ensure that there is an objective record of any statement of potential evidential value that may fall from such an exchange, even if it does so spontaneously or unexpectedly. My point is merely that I do not think that s 74D requires that this be done in a case such as the present, or imposes any admissibility obstacle as a result of a failure to do so.
For the reasons I have set out, I am not satisfied that ground 1 has been made out.
Ground 2: was the evidence admissible in the interests of justice?
Alternatively, even if the exchange between Walker and the appellant was an interview for the purposes of s 74D, I consider that the interests of justice required the admission of that evidence under s 74E(1)(b).
Once it is accepted that there has been non-compliance with the recording requirements of s 74D, the onus lies on the prosecution to establish that the interests of justice require admission of the evidence under s 74E(1)(b). In determining where the interests of justice lie in a particular case, it will be relevant to consider whether the non-compliance was deliberate or the product of a reckless disregard of the statutory provisions, or whether it was inadvertent or otherwise excusable. It will also be relevant to consider other factors such as the cogency of the evidence, and whether the content of the relevant interview is disputed.[84]
[84] R v Day (2002) 82 SASR 85 at [26].
In the present case, Constable Walker’s affidavit tendered on the voir dire did not expressly address the reason for non-compliance with the reporting requirements of s 74D on his part. I accept that it can be inferred that it would have been reasonably practical for Walker to have complied with those requirements. However, as to his reason for not complying, I think it can also be inferred that he simply did not believe or appreciate that there was any requirement that he record the exchange he had with the appellant. And it would follow from this that he did not believe or appreciate that there was any requirement that he ‘read back’ his note of that exchange when he later came to conduct the formal interview of the appellant that was recorded. Certainly it was not suggested that there was any deliberate or reckless non-compliance by Walker.[85] Defence counsel did not request that he be made available for cross-examination to put any such suggestion. And in light of my reasoning in relation to ground 1, I do not think it would be appropriate to infer recklessness on the part of Walker. To the contrary, I consider that his apparent belief that he was not required to record the relevant exchange was a reasonable belief to hold.
[85] This was treated as a significant consideration in R v Solomon (2005) 92 SASR 331 at [38], R v Karger (2002) 83 SASR 135 at [118] and R v Partington (2018) 132 SASR 11 at [28].
Further, it is significant that Walker’s evidence as to the relevant statement (namely, the appellant’s statement that he was unemployed) was both cogent and not disputed.[86] While Walker’s evidence was apparently given by reference to a combination of his usual practice and the notes he recorded, rather than any actual memory of the exchange, I do not think that this is of much moment given the limited nature of the statement attributed to the appellant. I do not think there is any reason to doubt that the note “u/e” was the product of a statement by the appellant that he was unemployed made in response to a question asking him where he was currently working. In my view, there was little or no room for dispute as to the content of the relevant exchange. It was not ever disputed that the appellant said he was unemployed. And I regard it as speculative to suggest that Walker or the appellant might have said anything else on this topic during their exchange that might have affected the meaning or evidential significance of the statement that he was unemployed. Certainly it was not suggested on the voir dire that anything else was said in this context by Walker or the appellant. And at trial, defence counsel, when cross-examining Walker, asked Walker to confirm that his evidence was that the appellant had said that he was unemployed, but that he had not read this back to him, or asked him any questions about his financial circumstances, when interviewing him. The cross-examination did not involve any challenge to Walker’s evidence as to what the appellant said to him. Indeed, the defence case at trial did not involve any dispute as to the underlying fact that the appellant was unemployed at the time of his arrest.
[86] This was treated as a significant consideration in each of R v Blayney [2002] SASC 192 at [35], R v Solomon (2005) 92 SASR 331 at [38], R v Karger (2002) 83 SASR 135 at [118] and R v Mekic (2004) 88 SASR 387 at [31]-[32].
The cogent and undisputed nature of the evidence in the present case is in stark contrast to the situation in R v Pedler.[87] In that case, the police officer, believing that the interview was being recorded, saw no reason to attempt to take a verbatim record of what was a relatively substantial conversation. She confined herself to making some “small notes of things that I just choose to remember along the way”. She later prepared an apprehension report from a combination of her memory and her “small notes”, which included some incriminating statements attributed to the defendant not included within her notes.[88] It was in this context that Vanstone J (in reasons with which Kelly J and I agreed) concluded that the evidence of the interview carried with it the dangers which led to the introduction of the legislation; and would not have been admissible under s 74E(1)(b). As to the latter, her Honour expressed the view that it is unlikely that admission would be justified under s 74E(1)(b) “unless the available evidence was seen to be an accurate record of the entire conversation”, and that “[t]his case is very far from that, because the statements attributed to the appellant are not verbatim and are without context.”[89] By way of contrast, in the present case, I do not think there is any reason to think that there was anything by way of context that was missing, or that the notes and evidence of Walker were other than an essentially verbatim account of the relevant exchange.
[87] R v Pedler (2017) 129 SASR 152.
[88] R v Pedler (2017) 129 SASR 152 at [7]-[8].
[89] R v Pedler (2017) 129 SASR 152 at [21].
In summary, I consider that any non-compliance by Walker was relatively trivial in nature; was not deliberate or reckless; and given the absence of any dispute about what the appellant said, or indeed whether in fact he was unemployed at the time, did not cause the appellant any unfairness or prejudice. In those circumstances, I am satisfied that the interests of justice required admission of the evidence of Walker as to his exchange with the appellant, including his evidence that the appellant stated that he was unemployed.
Of course, it remained open for the defendant to call any evidence he wished to as to his employment or financial circumstances at relevant times, or to put submissions as to the potentially limited significance of his statement to Walker. He did not call any such evidence, but did (through his counsel) put submissions to this effect. However, these are matters going to the weight and significance of Walker’s impugned evidence, not its admissibility.
For completeness, I note that under s 74E, if in the course of a trial by jury the court admits evidence of an interview under s 74E(1)(b), the court must draw the jury’s attention to the non-compliance by the investigating officer and give an appropriate warning, unless the court is of the opinion the non-compliance was trivial. While the trial judge did not give any such warning, this was not a matter addressed on appeal, and not a matter I need to consider given my conclusion that the appeal should be allowed on other grounds.
Conclusion
Having thus explained why I do not agree with Peek J that grounds of appeal 1 or 2 have been made out, I return to where I commenced. I agree with his Honour’s conclusion that ground of appeal 5 has been made out, and that the appeal should be allowed on that basis. I would thus order that the appeal be allowed, that the conviction and sentence be set aside, and that there be a retrial.
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