Steen v The Queen

Case [2020] SASCFC 60

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…

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Steen v The Queen [2020] SASCFC 60
Case
[2020] SASCFC 60
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the appellant, Steen, against his conviction. The dispute centred on the admissibility of certain evidence obtained during an interaction between the appellant and Constable Walker. The appeal was heard by Peek, Nicholson, and Doyle JJ.

The primary legal issues before the court were whether certain evidence, specifically an admission made by the appellant to Constable Walker, was admissible. This involved considering whether the interaction constituted an "interview" for the purposes of section 74D of the relevant legislation, which mandated recording requirements. If non-compliance with these recording requirements was established, the court had to determine whether the interests of justice, as contemplated by section 74E(1)(b), nevertheless required the admission of the evidence.

The court reasoned that while there had been non-compliance with the recording requirements of section 74D, the interests of justice favoured the admission of the evidence. The onus was on the prosecution to demonstrate this, and in doing so, the court considered factors such as the nature of the non-compliance. It was inferred that Constable Walker's failure to record the exchange was not deliberate or reckless, but rather stemmed from a genuine, albeit mistaken, belief that recording was not required. This belief was considered reasonable in the circumstances. Furthermore, the court found the evidence of the appellant's statement – that he was unemployed – to be cogent and undisputed. The defence had not challenged the content of this statement during cross-examination, nor had they disputed the underlying fact of the appellant's unemployment at trial. The court also referred to a trilogy of High Court decisions concerning similar interstate legislation, which provided background assistance on the interpretation of recording requirements and exceptions.

The court was not satisfied that the first ground of appeal had been made out. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

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?

Ratio Decidendi

Legal Principle Established

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