R v MARK RAYMOND SMITH, COLIN FREDERICK TURNER AND LORA ALTINTAS No. SCCRM 93/294 Judgment No. 4874 Number of pages - 19 Evidence - admissions - [1994] SASC 4874 - SASC 1994 case summary — Zoe

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

MARK RAYMOND SMITH, COLIN FREDERICK TURNER AND LORA ALTINTAS No. SCCRM 93/294 Judgment No. 4874 Number of pages - 19 Evidence - admissions

Legislation Cited (8)

Listening Devices Act 1972

Criminal Law Consolidation Act 1935

Summary Offences Act 1953

Statutes Repeal and Amendment (Public Offences) Act 1992

Listening Devices Act 1972

Statutes Repeal and Amendment (Public Offences) Act 1992

Criminal Law Consolidation Act 1935

Summary Offences Act 1953

Cases Cited (22)

R v MARK RAYMOND SMITH, COLIN FREDERICK TURNER AND LORA ALTINTAS No. SCCRM 93/294 Judgment No. 4874 Number of pages - 19 Evidence - admissions (1994) 75 A Crim R 327 [1994] SASC 4874 (1 December 1994)

CWDS Evidence - admissions - During the joint trial for murder of two alleged co-offenders, objection was taken to the admissibility of tape recorded conversations with one of the accused obtained in a clandestine fashion by a third person - held that although the recordings did not constitute a breach of the Listening Devices Act 1972, they should be rejected in the exercise of the Court's discretion as unfair, no caution having been given and the circumstances being such that a direct approach by police who wished to interrogate the co-offender concerned would have necessitated the giving of a caution. Listening Devices Act 1972 553, 4 and 7. R v Webb and Hay (1992) 59 SASR 563; Webb and Anor v The Queen [1994] HCA 30; (1994) 68 ALJR 582; Pfennig (No l) (1992) 57 SASR 507; Musico (1991) 55 SASR 274 and R v Dolan [1992] SASC 3638; (1992) 58 SASR 501, considered.

Evidence - admissibility of statements made during the course of joint criminal enterprise - Evidence of conversations by one of two co-accused with a third party in the absence of the other held to be admissible as acts or words done or said in furtherance of a common purpose which existed between them. Tripodi [1961] HCA 22; (1961) 104 CLR 1; Ahern [1988] HCA 39; (1988) 165 CLR 87 and Corak and Anor (1982) 30 SASR 404, considered.

In R v Webb and Hay (1992) 59 SASR 563, the Full Court considered the circumstances in which a warning should be given by investigating police officers. In the course of his judgment, with which Cox and Matheson JJ agreed, King CJ said (571): "The circumstances which oblige an investigating police officer to administer a caution, were considered by Mason CJ in Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656 at 661. The majority of the court considered that on the facts of that case there had been no impropriety with respect to the caution on behalf of the police, but there is nothing in the judgment of the majority to cast doubt upon Mason CJ's discussion of the principles. After referring to the requirements of the English Judges' Rules for a caution when a police officer has made up his mind to charge the suspect with a crime, when a suspect is taken into custody or when a suspect is formally charged, his Honour said: 'The occurrence of any one of these events may be taken as marking the beginning of the accusatory stage when the giving of a caution is required: see G.L. Teh, "An Examination of the Judges' Rules in Australia" (1972) 46 ALJ 489 at 493. And in one other situation at least the obligation to give a caution will arise earlier. For example, when the police have sufficient evidence in their possession to justify a charge, even if they have not decided to charge the suspect: see Devlin, The Criminal Prosecution in England (1960), p.29. Each of the four events just mentioned is a signal that the general inquiry has reached the stage whereby the suspect has been identified as the perpetrator of the crime and as

against him, before making a definite decision to charge him. But, recognition of the right to silence and considerations of fairness to the suspect demand that, in these situations, the police should issue a caution ....' In R v Dolan [1992] SASC 3638; (1992) 58 SASR 501, the Full Court, sitting as a Court of Criminal Appeal, applied the principles to the case of a systematic recorded interrogation of a person against whom allegations of a sexual offence had been made by an alleged victim. The evidence of the interrogating police officer, which was accepted, was that he wished to hear the suspect's answer to the allegations before deciding whether to arrest and did not make up his mind to charge him until he gave certain answers which the police officer regarded as unsatisfactory. The court held that the caution ought to have been administered at the commencement of the interview as the police officer had a reasonable suspicion of the guilt of the suspect. In order to require the caution to be administered, the reasonable suspicion must result from evidence available to the police officer implicating the suspect in the crime. The circumstances in the present case were quite unlike those in Dolan (supra). Here there was no allegation by an alleged victim which would justify the laying of a charge against the alleged offender." (A subsequent appeal to the High Court was argued on other grounds. See Webb and Anor v The Queen [1994] HCA 30; (1994) 68 ALJR 582.)

Tripodi was approved and explained in Ahern [1988] HCA 39; (1988) 165 CLR 87. Ahern is authority for the further proposition that it is for the Judge and not the jury finally to determine the question of admissibility. That is to say, the Judge must decide for himself or herself whether there is "reasonable evidence of the preconcert" to provide a basis for the admission of the challenged evidence. Once the Judge rules in favour of the admissibility of the evidence, the evidence must then be considered by the jury, even though the jury may ultimately reach the view that in fact there was no joint enterprise between the author of the statements and the other party against whom the evidence is sought to be admitted.

(1992) 59 SASR 563

(1994) 68 ALJR 582

(1992) 57 SASR 507

(1991) 55 SASR 274

(1992) 58 SASR 501

(1961) 104 CLR 1

(1988) 165 CLR 87

(1982) 30 SASR 404

(1992) 59 SASR 563

(1988) 62 ALJR 656

(1994) 68 ALJR 582

(1992) 57 SASR 507

(1973) 6 SASR 427

(1983) 2 VR 155

(1987) 46 SASR 310

(1982) 30 SASR 176

R v MARK RAYMOND SMITH, COLIN FREDERICK TURNER AND LORA ALTINTAS No. SCCRM 93/294 Judgment No. 4874 Number of pages - 19 Evidence - admissions

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (22)

R v MARK RAYMOND SMITH, COLIN FREDERICK TURNER AND LORA ALTINTAS No. SCCRM 93/294 Judgment No. 4874 Number of pages - 19 Evidence - admissions (1994) 75 A Crim R 327 [1994] SASC 4874 (1 December 1994)