R v TRIPODI No. SCCRM-02-357 [2002] SASC 420

Court of Criminal Appeal: Doyle CJ, Mullighan and Besanko JJ

DOYLE CJ: Mrs Tripodi was convicted in the District Court, after a trial by judge alone, of taking part on 15 October 2001 in the sale of cannabis, contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA).

Central to the prosecution case was evidence of a number of conversations between Mrs Tripodi and Detective Copeland on 16 October 2001. The conversations took place at Mrs Tripodi's home and at a police station. In the first conversation Mrs Tripodi made admissions which implicated her in the crime charged.

The Prosecutor conceded that Detective Copeland did not comply with the requirements of s 74D(1) of the Summary Offences Act 1953 (SA) ("the SOA") when he interviewed Mrs Tripodi at her home and at the police station. It was reasonably practicable to have recorded the whole of the interview on videotape. In fact, some short portions of the interview were not recorded on videotape or audiotape, and the main part of the interview, the conversation at her home, was recorded on audiotape rather than videotape.

At the commencement of the trial the Judge heard evidence about the conversations, and held that the interests of justice required the admission of the evidence of the interview between Detective Copeland and Mrs Tripodi, exercising the power conferred on him by s 74E(1)(b) of the SOA.

Mrs Tripodi appeals against her conviction on the ground that the Judge erred in admitting the evidence of the conversation. The trial Judge certified under s 352(1)(a)(ii) of the Criminal Law Consolidation Act 1935 (SA) that the case is a fit case for appeal against conviction on this ground.

The argument on appeal was concerned mainly with the meaning of the expression "the interests of justice" in s 74E(1)(b).

On 15 October 2001 police officers found cannabis in a box at a transport depot in Adelaide. The consignor of the box was recorded as Joe Tripodi. On 16 October 2001 Detective Copeland and other police officers went to the address stated for the consignor. No one else was present. The police searched the premises and found a number of incriminating items.

A little later Joe Tripodi arrived at the premises. He was arrested by police officers other than Detective Copeland, and was interviewed by them. The interview was recorded on videotape.

A little later again Mrs Tripodi arrived. Detective Copeland spoke to her outside the house. That conversation was not recorded. The Prosecutor did not lead any evidence of what was said. From references to the conversation in a later conversation, it seems likely that it was a short conversation in which Detective Copeland informed her why the police were at the property.

Detective Copeland and Mrs Tripodi then went into the house. Detective Copeland then had a conversation with Mrs Tripodi, recording the conversation on audiotape. Early in the conversation he told Mrs Tripodi that she was under arrest. He informed her of her rights under s 79A of the SOA. However, while he informed Mrs Tripodi of her right to have a solicitor, relative or friend present during any interrogation, he did not add that that same right applied during any investigation to which Mrs Tripodi was subjected while in custody.

After a while Mrs Tripodi said that she wanted to go to the toilet. The audiotape recorder was switched off. When the recorded interview resumed, Detective Copeland is recorded as saying that:

"When we had that break you indicated to me that you thought you might be better for you to get a solicitor" (sic).

Mrs Tripodi confirmed that that was so, and the conversation concluded at that stage. In his evidence Detective Copeland said that when she returned from the toilet break Mrs Tripodi asked him "off the top of her head" if she should get a solicitor. My impression from the evidence is that this part of the conversation occurred before Detective Copeland had time to realise that it should be recorded.

In any event, after the conversation recorded on audiotape concluded, Mrs Tripodi was taken to a police station. There was then a further conversation with Detective Copeland recorded on videotape. Detective Copeland referred to the fact that earlier that afternoon he had recorded an interview with Mrs Tripodi, and told her that he would play the record of interview so that she could hear it. He reminded her that she did not have to answer any questions, reminded her of her right to make a telephone call, of her right to have someone present and of her right to an interpreter. He confirmed that she had spoken to a solicitor (this must have happened after the audiotaped conversation concluded) and that she did not wish to answer any more questions. Detective Copeland told her that he would play the tape and that she could comment:

"If there's anything on it you don't like or you think wasn't right."

The earlier conversation recorded by audiotape was then replayed, and shortly after that the conversation concluded.

Detective Copeland gave evidence that he thought that s 74D of the SOA required him, in the circumstances, to record on videotape the playing of the audiotape of the first conversation. In this respect he was mistaken. When it is not practicable to record a conversation on videotape or audiotape, and a written record is made, that record must be read aloud to the suspect as soon as practicable, the reading being recorded on videotape: s 74D(1)(c). It seems likely that he mistakenly followed the procedure to be followed in the case of a written record of interview.

Detective Copeland gave evidence that he was an experienced police officer. He said that he was familiar with the requirements of s 74D of the SOA. He agreed that the police had a video recorder at the house. In evidence-in-chief the following question and answer appear:

"Q. When you went to interview Mrs Tripodi, did you turn your mind at all to the use of that camera.

While in cross-examination he appears to acknowledge that he made a "deliberate decision not to videotape her", I am satisfied that he was doing no more than acknowledging that having decided to record the interview on audiotape, it could be said in a sense that he had made a decision not to record the interview on videotape. In cross-examination Detective Copeland confirmed that he could not offer any explanation for his failure to use the videotape recorder.

As to the conversation recorded on videotape, Detective Copeland agreed that Mrs Tripodi had said she did not wish to answer more questions. He said he thought he was obliged to record on videotape the playing of the conversation recorded on audiotape.

As to the failure to inform Mrs Tripodi of her right to have someone present during the investigation, as distinct from during any questioning, Detective Copeland said that this was a result of his attempt to explain to Mrs Tripodi her rights in simple language. In effect, he was saying that he thought he had adequately explained her rights, but acknowledged that the distinction between an interrogation and an investigation might not have been made clear.

The Judge found that Detective Copeland was honest. He found that the failure to record the conversation at the house on videotape was neither a deliberate nor a reckless disregard of s 74D of the SOA. He said that the most likely explanation was inadvertence. I think this must mean that on the occasion in question Detective Copeland simply forgot or was confused about the obligation imposed by s 74D. As to the failure to record the short conversation after the toilet break, the Judge found that this failure also was due to inadvertence. The Judge regarded the admissions made by Mrs Tripodi as cogent. There was no challenge to the accuracy of the record of the conversation recorded on audiotape. That being so, the implicit confirmation of the conversation recorded on audiotape, which occurs during the conversation recorded on videotape, is of no great significance.

The Judge held that the interests of justice required the admission of the evidence. The evidence was strongly probative of guilt. The admissions were voluntary. There was no challenge to the accuracy of the audio recording or video recording. There was no other unfairness or prejudice to Mrs Tripodi. The failure to comply with s 74D was due to inadvertence.

In view of the concession by the Prosecutor that the conversation recorded on audiotape, the short unrecorded conversation during the toilet break, and the conversation recorded on videotape were all one series of conversations, and in view of the further concession that Detective Copeland failed to comply with s 74D, it suffices to set out certain parts only of the legislation.

In s 74C an "interview" is defined to include "a series of conversations." The obligation to record an interview on videotape or on audiotape is found in s 74D(1), the relevant parts of which provide as follows:

"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 record the interview on videotape, a videotape recording of the interview must be made;

(b) if it is not reasonably practicable to record the interview on videotape but it is reasonably practicable to record the interview on audiotape, an audiotape recording of the interview must be made; ...".

Subpara (c) of s 74D(1) sets out the procedures to be followed when it is neither reasonably practicable to record the interview on videotape nor reasonably practicable to record the interview on audiotape.

"(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."

(a) make evidence admissible that would otherwise be inadmissible; or

(b) affect the court's discretion to exclude evidence."

In this case it is not necessary to revisit the question of when a number of conversations will be "a series of conversations" for the purposes of subpara (c) of the definition of "interview" in s 74C. It is not necessary to do so because of the concession that the conversation at the house should have been recorded on videotape. It was also conceded that the conversation that began inside the house and ended at the police station was a series of conversations constituting an interview for the purposes of s 74C.

Whether the conversation outside the house, which was not recorded at all, should have been recorded is not clear, because it is not clear what was said there. No attempt was made to rely on anything that was said there. Under the circumstances this conversation can be put to one side. The Judge said that even if it was part of the interview, he would have reached the same conclusion as he did reach, and I find no reason to think that separate consideration of this conversation would have led to a different result.

The submission by Mr Edwardson, counsel for Mrs Tripodi, was that the Judge wrongly interpreted the expression "the interests of justice" in s 74E(1)(b), as entitling the Judge to take into account matters other than the extent of the non-compliance with s 74D and the reason for the non-compliance. He submitted that the interests of justice could require the admission of the evidence only if the non-compliance was "technical". The Judge had considered other matters that should not have been considered, and so had erred in law.

He supported the submission by making the following points. The legislation is intended to provide a statutory safeguard for suspected persons. Parliament has made it clear that video recording of interviews is preferred. The legislative preference should be observed strictly. These considerations, and the fact that s 74E(1) provides that evidence of an interview is inadmissible in the event of non-compliance, unless the interests of justice require its admission, suggest that the power to admit evidence in the interests of justice is to be read narrowly. The court retains the usual discretions to exclude evidence on the grounds of unfairness or public policy: s 74G. Questions of fairness, the cogency of the evidence, public policy and the like can be taken into account in the exercise of those discretions. There is no need for them to find a place under s 74E(1)(b). They were the main arguments in support of the submission put as to the meaning of "the interests of justice."

Further or alternatively Mr Edwardson submits that the failure by Detective Copeland to comply with s 74D was reckless. Detective Copeland said that he knew his statutory obligation. He could not explain his failure to comply with it. As he could offer no explanation, the Judge should not have found that he simply forgot or overlooked his obligation. If Detective Copeland was reckless, this would outweigh the considerations relied on by the Judge, even if it was proper to take them into account.

Finally, Mr Edwardson relies on the failure to advise Mrs Tripodi fully of her rights, and of the fact that Detective Copeland conducted a videotaped interview of Mrs Tripodi after she had exercised her right to remain silent. This evidence at least should have been excluded.

It was open to the Judge to find that Detective Copeland overlooked the fact that he should have recorded the conversation at the house on videotape. This aspect of the case is puzzling. But the Judge saw Detective Copeland give evidence, and found that he was honest. In particular, it was open to the Judge to find that Detective Copeland did not deliberately ignore his statutory obligation, or do so to secure some advantage.

The failure to explain clearly that Mrs Tripodi was entitled to have someone present during the investigation was, in my opinion, a minor departure from the requirements of s 79A of the SOA in the circumstances. If relevant to the interests of the administration of justice, the Judge rightly did not regard it as an obstacle to a conclusion that the evidence of the interview should be admitted. Nor was it a basis for the Judge to exclude the evidence in the exercise of a discretion preserved by s 74G.

Similarly, the conducting of the interview that was recorded on videotape after Mrs Tripodi has said she wished to obtain legal advice, while inappropriate, is not a matter that told strongly against admission of either conversation. It seems clear that Detective Copeland was confused about the requirements of s 74D. That is what the Judge found. As there is no challenge to the accuracy of the audiotape recording of the earlier conversation, the later conversation is of no particular significance. Even if it was excluded, a conviction would have followed. For those reasons the continuation of the interview after Mrs Tripodi indicated that she did not wish to answer further questions is not something that told strongly against the admission of the whole interview into evidence.

It is now convenient to focus on the question of whether the Judge erred in deciding that the expression "the interests of justice" entitled him to have regard to the matters to which he did have regard.

It is true that Parliament has made it clear that it requires an interview with a suspect to be recorded on videotape if practicable. The importance attached to this requirement is indicated by s 74E. Evidence of an interview is inadmissible unless the requirements of s 74C to s 74F are met, or the interests of justice require the admission of the evidence. This is an unusual kind of provision. Rather than giving the court a discretion to exclude evidence, it renders evidence of an interview presumptively inadmissible, allowing only two gateways to admission - compliance with the statutory requirements or the interests of justice.

However, it must be borne in mind that it may be necessary to resort to s 74E(1)(b) in quite a wide range of situations. For example, the only failure to comply with the statutory requirements might have been a failure to provide, on request and on payment of the appropriate fee, a copy of an audiotape recording: s 74D(6)(b). It is relevant to bear in mind that a failure to comply with the legislative requirements might arise in a range of situations, and might arise even though an interview is correctly recorded on videotape. The expression "the interests of justice" is intended to cater for a range of situations, some of which may be of peripheral importance to the parliamentary purpose.

The main difficulty that Mr Edwardson's submission confronts is that the expression chosen by Parliament, "the interests of justice", is an expression that is relatively well known and, depending on the context, is one that suggests that a wide range of factors, including matters of the kind identified by the Judge, is relevant. Why should the expression be read down in the manner suggested by Mr Edwardson?

On Mr Edwardson's approach, one would have expected Parliament to have provided that the evidence would not be admitted unless the court is satisfied that having regard to the nature or extent of the non-compliance and the reasons for the non-compliance it is proper or appropriate to admit the evidence. Alternatively, Parliament might have provided that the evidence could be admitted only if non-compliance was trivial.

I find it difficult to understand why Parliament would choose an expression such as it did choose, if the matters properly to be considered are as restricted as suggested.

The provision found in s 74G does not assist Mr Edwardson's submission. First of all, the courts are familiar with overlapping statutory provisions and common law discretions in relation to the admission of evidence in criminal cases. Secondly, if Mr Edwardson is correct it is likely that in a fair number of cases in which the investigating officer has not complied with the Division, the evidence of an interview will remain inadmissible, because the interests of justice will not require its admission. If that occurs, the opportunity for the court to exercise the discretions preserved by s 74G will never arise. Accordingly, questions of fairness and public policy and the like will never fall for consideration. To my mind it is clear that s 74G(b) has been enacted to make it clear that the decision to admit evidence under s 74E(1)(b) is not conclusive, and that although the evidence has been admitted there can still be a decision in the exercise of the court's discretion to exclude the same evidence. Having regard to the different nature of the statutory power under s 74E(1)(b) and the discretions preserved by s 74G(b), no inference can be drawn from s 74G(b) that questions of fairness and policy and the like are not to be considered under s 74E(1)(b), being left for consideration only under s 74G(b).

My conclusion is that there is no good reason to refrain from giving to the expression "the interests of justice" its usual meaning. That means that the expression should be read as embracing a wide range of factors. One would think that that is the very reason why that expression was chosen. If Parliament had taken the view that it had already appropriately balanced all relevant factors by deciding that the evidence is presumptively inadmissible, leaving only the significance of the non-compliance and the reason for it to be considered before making an exception, one would have expected Parliament to express itself in quite different language.

For those reasons I conclude that the Judge took the correct approach. The matters that he considered were relevant. To so conclude is not to say that the policy underlying s 74D is unimportant, or is not to be given due weight. It is only to say that despite that, a range of matters is relevant in deciding if evidence of an interview should be admitted "in the interests of justice."

There is no point in the Court trying to determine in advance what matters will or will not be relevant under s 74E(1)(b). That is to be decided case by case. There are just two general observations that I would make. The potential of the interview to implicate an accused is something to be considered with care. In a particular case, for example, one in which the failure to comply with s 74D is deliberate or reprehensible, the cogency of the evidence might be a reason for concluding that the interests of justice do not require its admission. Second, the fact that the interview is accurately recorded, even though in some respect the legislative requirements are not complied with, will often suggest that the interests of justice require the admission of the evidence, because the purpose of the legislation is to ensure that the court is provided with a reliable record of an interview. However, other factors must be considered as well.

As far as I can tell from the cases, the submission put by Mr Edwardson to this Court has not been put before. Subject to that comment, it appears to me that the view that I have expressed is consistent with views previously expressed by individual Judges of this Court when the issue has come before the Court: see R v Day [2002] SASC 95; (2002) 82 SASR 85 at [26] Perry J; R v Blayney & Blayney [2002] SASC 192; (2002) 220 LSJS 102 at [32] Doyle CJ; R v Karger [2002] SASC 294; (2002) 221 LSJS 224 at [118] Gray J.

The Judge correctly interpreted s 74E(1)(b). It has not been shown that the Judge erred in the application of the provision. The appeal against conviction should be dismissed.

MULLIGHAN J: I have had the advantage of reading the reasons for judgment of the Chief Justice. I agree that the appeal should be dismissed for the reasons he has given and there is nothing which I can usefully add.

BESANKO J: I agree that this appeal should be dismissed. I agree with the reasons of the Chief Justice and there is nothing which I wish to add to those reasons.