Westell v Police - [2004] SASC 330

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WESTELL v POLICE
Judgment of The Honourable Justice Anderson
21 October 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - ARREST AND DETENTION FOR QUESTIONING AND INVESTIGATION
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The appellant was stopped by two police officers whilst walking in the early morning - he was carrying a bag which the police asked if they could search - the appellant was subsequently arrested and charged with possessing property suspected of being stolen or obtained by unlawful means - whether procedure followed by police complied with section 74D of the Summary Offences Act 1953 (SA) - whether Magistrate erred in not ruling on question of admissibility of evidence - whether appellant had belief that he was under arrest - held: Magistrate erred in not ruling on question of admissibility and not excluding evidence - appeal allowed.
Criminal Law Consolidation Act 1935 (SA) section 171(2); Summary Offences Act 1953 (SA) sections 41(1), 74C, 74D, 74E, referred to.
The Queen v Byczko and McCloud (1982) 30 SASR 578; R v Webb and Hay (1992) 59 SASR 563, applied.

WESTELL v POLICE
[2004] SASC 330

Anderson J In this matter, the appellant was convicted by a Magistrate for having in his possession house breaking equipment at night and without lawful excuse pursuant to s 171(2) of the Criminal Law Consolidation Act 1935 (SA), prior to it being repealed by Act No. 26 of 2002.
He was also charged and convicted under s 41(1) of the Summary Offences Act 1953 (SA) for having in his possession certain property which was reasonably suspected of having been stolen or obtained by unlawful means.
The appellant was spoken to by police at about 5 a.m. on 26 December 2002. He was walking on a footpath at Glenelg. Two police officers driving a police car recognised the appellant and having passed him, did a U-turn, and spoke to him.
This initial conversation between the appellant and the two police officers was not recorded either at the time of the conversation or subsequently, and it was neither part of a later conversation recorded in a notebook nor part of an interview which was videotaped. Neither the notebook nor the video contains any reference to that initial conversation on the footpath at Glenelg, and it is suggested that therefore there has been a breach of s 74D of the Summary Offences Act.
The initial conversation is important in relation to what followed, and the details of that conversation are contested. It sets the scene for the subsequent action of the police.
After the initial conversation on the footpath at Glenelg, the police officers say they asked and were permitted by the appellant to search a bag which the appellant was carrying. It is said by the respondent that the search was with the permission of the appellant but this is disputed by the appellant.
I set out a ruling of the learned Magistrate given on 4 May 2004 at the conclusion of the case for the prosecution:
“1.     We adjourned yesterday I think about 10 past 4. Before we adjourned I had a discussion with Mr Ibbotson and Ms Baker and at the conclusion of that discussion I made some remarks. The purpose of the discussion was, on Mr Ibbotson’s part, to seek and obtain rulings prior to obtaining instructions about whether or not he would wish to put a no case submission and, of course, as part of that to consider the position of the accused so far as the topic of election is concerned.
2.     What Mr Ibbotson puts to me now, in my view, is no different to that which was advanced yesterday. The propositions remain the same. The context of the law remains the same. This is not, in my view, a case where it is either necessary or desirable for me to either depart from or expand on the comments that I made yesterday afternoon and I, therefore, do not propose doing so.
3.     In the context of this case what has simply occurred thus far is this, that:
(1) I did not embark on a voir dire hearing:
(2) that the prosecution has now closed its case.
4.     In my opinion it now falls on Mr Ibbotson, on behalf of Mr Westell, to advise me whether in fact he wishes to make a no case submission and if he does for me to rule, if required, on whether, indeed, Mr Westell should be required to make an election.”
There is a complaint made as to the ruling set out above. In fact, it is conceded before me by the respondent that the learned Magistrate was in error. As put by the respondent, the Magistrate:
“…confused the role of the court in determining a submission of no case to answer with the role of the court in determining issues as to admissibility.”
What the learned Magistrate has done amounts to a refusal by him to rule on the question of admissibility relating to the initial conversation between the police and the appellant. Then he has required defence counsel to decide on a no case submission without ruling on the objection as to admissibility of the evidence. It was a proper concession by the respondent.
The question therefore is, given the concession by the respondent as to the error by the Magistrate, whether the appellant has been put at any disadvantage in the conduct of his defence such that it could be said that there was a miscarriage of justice.
Before the Magistrate, the police prosecutor conceded that there had been a breach of s 74D, although before me it was argued that this was an incorrect concession. However as will become apparent, I consider that the concession made before the Magistrate was a proper concession.
It is necessary to look at the sequence of events to decide how much, if any, disadvantage the appellant was placed under by virtue of the fact that the initial conversation was not recorded, and that the search of the appellant’s bag then proceeded during a time when, in my view, the appellant must have felt obliged to cooperate with the police.
It is my view that the Magistrate was in error in failing to rule that the unrecorded conversations were inadmissible under s 74E. The unrecorded conversations did form part of a series of conversations within the meaning of s 74C and the procedure laid down in s 74D was not followed.
Without the initial conversation between the police officers and the appellant, it is difficult to see how it could have been established by the prosecution that the stopping of the appellant and the search of his bag and person was lawful.
The Magistrate sets out in his reasons details of the initial conversation. Although it was not extensive, it was nevertheless very important in setting the scene before the bag was handed over, before a caution was issued and before detailed questioning followed. All of these matters preceded the arrest of the appellant and his formal record of interview recorded at the Sturt Police Station. It was clearly part of a series of conversations, all of which were relevant.
As I have indicated, the videotaped record of interview does not contain any reference to the initial conversation between the two police officers and the appellant. The interview recorded in the policeman’s note book at the scene, which includes the appellant discussing the contents of the bag and his pockets, which he was also required to empty, again does not make any reference to the initial unrecorded conversation.
The Magistrate proceeded by reasoning that the stopping of Mr Westell was lawful and thereafter a lawful search was conducted, and that in the circumstances the conversation was irrelevant.
I do not agree with this point of view because I have formed the view that the appellant was reasonably entitled to believe that he was being detained and was, in effect, under de facto arrest. There is no power for a police officer to detain a person suspected of committing a crime for the purpose of interrogating him. See The Queen v Byczko and McCloud (1982) 30 SASR 578 per King CJ at 583. King CJ said that the police officer must decide whether to exercise his power to arrest on suspicion of crime.
Again in R v Webband Hay (1992) 59 SASR 563, King CJ at 571 said:
“The test is whether the actions of the police would have induced a reasonable person in the position of Webb and did in fact induce Webb to suppose that he was not free to leave.”
It seems that the sequence of events is that the police officers asked the appellant either, “Would you come back”, or, “Could you come back for a chat”, and then proceeded to ask him what was in his bag, and then the long conversation followed relating to the tools which were found in the bag.
That must have meant to the appellant that he was being detained, and in these circumstances, as I have said, I consider the appellant had good reason to believe that he was being arrested. The appellant was then cautioned, and, as I have said, the conversation proceeded and was then recorded. In those circumstances, it is my view likely that, to use the words of King CJ, the appellant had a belief “that he was not free to leave”, at the time he was asked about the contents of the bag.
With that background in mind, it was therefore imperative, in my view, that s 74D was complied with strictly. The initial conversation should have been incorporated into the long conversation involving the detailed discussion of the contents of the bag and recorded by the policeman in his note book.
It is my view that the appellant has clearly been put at a forensic disadvantage by virtue of the error of the Magistrate in the directions he gave at the close of the prosecution case. He should have excluded the evidence for the reasons I have advanced and then the defendant was free to make his choice as to how he would run his case. He was not given that opportunity. It was not in the interests of justice to allow evidence of the initial conversation, which had not been obtained in compliance with s 74D of the Summary Offences Act, and which was an essential part of setting the scene for the subsequent interrogation and the inspection of the bag.
I therefore allow the appeal, quash the convictions and remit the matter for hearing before a different Magistrate.