Bell v The Queen

[2012] QDC 358

DISTRICT COURT OF QUEENSLAND

CITATION:

Bell v The Queen [2012] QDC 358

PARTIES:

STAFFORD SHANE BELL
(applicant)
v
THE QUEEN
(respondent)

FILE NO/S:

D240/12

DIVISION:

Criminal jurisdiction

PROCEEDING:

Pre-trial application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

26 October 2012

DELIVERED AT:

Ipswich

HEARING DATE:

19 October 2012

JUDGE:

Bradley DCJ

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – POLICE INTERROGATION – VOLUNTARY CONFESSION – DISCRETION TO EXCLUDE CONFESSIONAL STATEMENTS – GENERALLY – where applicant charged with entering premises with intent to commit an indictable offence, unlawful use of a motor vehicle and wilful damage – where applicant made admissions during recorded police interview – where applicant alleges police officer induced the applicant to make false admissions – where police officer failed to comply with statutory requirements – whether admissions voluntary; whether discretion to exclude as unfair should be exercised 

Police Powers and Responsibilities Act 2000 (Qld) s 420

Police Powers and Responsibilities Regulations 2000 (Qld) sch 2

The Queen v Swaffield (1998) 192 CLR 149

COUNSEL:

C. Cassidy for the applicant

A. Stark for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service for the applicant

Director of Public Prosecutions (Queensland) for the respondent

HER HONOUR:  Good morning.  This is the matter of Stafford Shane Bell.  I'm just going to give my decision with respect to the preliminary hearing that occurred last week.  But, if you could just announce your appearances thanks.

MR NEEDHAM:  Yes, your Honour.  Needham, initials N W, I appear on behalf of the Director.

MR HOSKIN:  If your Honour pleases, Hoskin H-O-S-K-I-N, initial T, solicitor with the Aboriginal Legal Service on behalf of Bell.  Thank you.

HER HONOUR:  Thank you.  Mr Bell's not here?

MR HOSKIN:  He's not here, your Honour, no..

HER HONOUR:  No, that's fine.  Stafford Shane Bell is charged with entering premises with intent to commit an indictable offence therein, unlawful use of a motor vehicle and wilful damage of a lock.

The offences are alleged to have been committed between the 7th and 10th of December 2009 at Wondai.

The facts in relation to the offending, which I'll take from the respondent's outline of submissions, are that a white Toyota Hilux utility was observed to be missing from the premises of the Parkside Group Sawmill at 12 Pring Street, Wondai, on the 9th of December 2009.  These premises were within a locked security fence and the keys for the vehicle had been taken from the box in a shed within the premises.

The vehicle had been driven from the bottom gate of the premises, as evidenced by a broken lock on this gate.  The vehicle was located at the rear car park of One Mile Hotel in Ipswich on the 10th of December 2009.  CCTV footage recorded a male driver of similar appearance to the accused, park the vehicle and alight from it before returning apparently to wipe the steering wheel of the vehicle and again, walk away from it.

The CCTV footage led Murgon Police to suspect the accused was the offender.  On Sunday the 4th of July 2010, the accused was arrested with respect to drug offences and taken into custody at the Murgon watch-house.  On the morning of the 5th of July 2010, that is a Monday, the accused was interviewed by Detective Senior Constable Peter Lunney of the Murgon Police.  The interview was audio recorded.  During that interview, the accused admitted jumping the fence of the sawmill and taking the car.  He said he cut the padlock of the sawmill gate with bolt cutters taken from the sawmill.  He admitted abandoning the car at the One Mile Hotel. 

He was issued with a notice to appear with respect to the enter premises with intent and the unlawful use of a motor vehicle offences. 

The accused has applied to have the recorded interview with Detective Lunney excluded as evidence at his trial on the basis that, firstly, the admissions were not made voluntarily and, secondly, that it would be unfair and contrary to public policy to admit them.

The accused was not granted watch-house bail for the drug offences and the police intended to object to him being granted bail when he was taken before a Magistrate on Monday the 4th of July 2010.

The accused alleges that when Senior Constable Lunney approached him in the Murgon watch-house, he told the accused he wanted to talk to him about the break and enter and the unlawful use of a motor vehicle offences in Wondai, and that Senior Constable Lunney said to him, words to the effect, "Come out here, we'll do a record of interview and I'll get you out on bail."

This assurance, the accused says, induced him to make false admissions to the offending, even though it was in fact an associate of his, Mick Taylor, who had committed the offences. 

Both Senior Constable Lunney and the accused gave evidence at the hearing of this application.  Senior Constable Lunney said that his conversation with the accused in the watch-house was "pretty quick" and during it he introduced himself and said that he wanted to talk to the accused.  The walk from the watch-house to the interview room in the police station took only 20 to 30 seconds and he can't remember them having any conversation in transit.

In the interview room, Senior Constable Lunney told the accused who he was and what he wanted to speak to him about.  The interview was audio recorded only on his portable recorder and not videod on the equipment in the interview room, as Senior Constable Lunney said that equipment was new and he was not familiar with the operation of it.  At the conclusion of the interview, he took the accused back to the watch-house where the accused was charged and issued with a notice to appear for these offences. 

The interview, according to the recording of it, took place between 8.49 and 8.58 a.m. on the 5th of July 2010.  The custody record, a print-out of which was tendered in evidence, indicates that the accused was "transported to the interview room by Senior Constable Lunney for interview" at 8.13 a.m.  Senior Constable Lunney interviewed the accused without another police officer being present.  This, according to Constable Lunney was standard practice because there were only two detectives on duty at the Murgon Police Station at the time. 

Senior Constable Lunney said that he was aware that police were objecting to bail for the accused on the drug offences, but that he issued the accused with a notice to appear for these offences as he knew that the accused would be taken before a Magistrate that day.  Senior Constable Lunney agreed that it was obvious as soon as he met the accused, that the accused was Aboriginal.  He also admitted, firstly, that he didn't check to see if the accused was a drug user.  Secondly, that he was aware the accused had been seen by an Aboriginal Legal Service solicitor whilst in the watch-house the day before.  Thirdly, that there was nothing preventing him activating his mobile recorder whilst in the watch-house so as to record the conversation he had with the accused prior to the recorded interview. 

Fourthly, that he didn't obtain a copy of the list of support people the Murgon Station was required to maintain for Aboriginal and Torres Strait Islander accused.  Fifthly, he didn't advise the Aboriginal and Torres Strait Islander Legal Service before he interviewed the accused.  Sixthly, he was aware that the accused had an extensive criminal history.  Seventhly, he didn't believe the accused was at a disadvantage in his dealings with police, and finally that he failed to comply with Section 2.5.9 of the Queensland Police Service Operational Procedures Manual and obtain the approval of a commissioned officer prior to having the accused released from the watch-house for the interview.

Senior Constable Lunney does not recall the accused telling him that his mate, Mick Taylor, had taken the car.  He did not believe the accused was under the influence of, or affected by any drug, and he denied saying that he would get the accused bail if he participated in a recorded interview and made admissions to the offending.

He also denied that the accused said he wanted a field officer to be present with him, which request was refused on the basis that "that will take ages".

The evidence of the accused was the he is 54 years of age and was born in Wondai.  He left school half way through grade 9 and has spent the best part of 25 years in and out of gaol.  He's in receipt of a disability pension because, he says, of "institutionalisation" and drug addiction.

In 2010 and at the time of the interview, he was a poly drug user, abusing pills, marijuana and speed and was using heavily.  He said that he was affected by all three drugs on the 4th of July 2010 when he was taken into custody.  He says that he has a background of emotional and physical abuse which has adversely affected him. 

When Senior Constable Lunney came to his cell door at the watch-house, Lunney was friendly towards him and although the accused doesn't normally or doesn't usually talk to police, he was curious and was friendly back to him. 

When Senior Constable Lunney said, "Come out here, we'll do a record of interview and I'll get you out on bail" all he was thinking about was bail.  He told Senior Constable Lunney how his associate had committed the offences but Senior Constable Lunney ignored that.  The accused said he didn't tell the truth in the recorded interview and would have said yes to anything as he just wanted to get out on bail.  He could remember the detail of the offending from what his associate, the real offender, had told him sometime earlier in 2010.

The accused said he'd consumed drugs whilst in the watch-house and at the time he had a $1,000 a week ice habit.  He agreed such drug use affected his memory and although he remembers "the main things" he does not remember things in 2010 very clearly today. 

In fact, when the accused was brought before the Magistrate it seems, on the afternoon of the 5th of July 2010, police did oppose him being granted bail, although ultimately the Magistrate did allow him to be released on bail.

The onus is on the Prosecution to prove a confession is voluntary and it must do so on the balance of probabilities.  In this case the determination of whether an inducement was offered to the accused to make a confession turns on an assessment of the respective credibility and reliability of the evidence of Senior Constable Lunney and the accused.

There were some aspects of Senior Constable Lunney's evidence which raise some doubt as to his credibility.  For example, the mostly unexplained delay between when the accused left the watch-house at 8.13 a.m. and when the recorded interview was commenced at 8.49 a.m.  And the fact he interviewed the accused alone and did not use the audio visual equipment in the interview room.  However, the accused's concession that he was under the influence of drugs at the time of the interview, the effect that drug use had had on his memory and the fact that police did, in fact, oppose his bail in Court later that day leads to the conclusion that Senior Constable Lunney's version of the events is more plausible than that of the accused and that Senior Constable Lunney's evidence is more reliable.

I therefore am satisfied on the balance of probabilities that Senior Constable Lunney did not offer to get the accused bail if he made confessions to him in a recorded interview and that no inducement to take part in the interview and confess to the offending was made to the accused, and the admissions he made therein were made voluntarily.

Certainly, Senior Constable Lunney failed to comply strictly with a number of requirements of the Police Powers and Administration Act and Regulations and the Queensland Police Service Operational Procedure Manual.  Particularly as they relate to the interviewing and treatment of Aboriginal people.  Senior Constable Lunney was aware from the outset that the accused was Aboriginal and apparently knew that he'd been earlier seen by a lawyer from the local Aboriginal and Torres Strait Islander Legal Service.

From the charges for which the accused was being held in custody it would have been apparent that the accused was a drug user, although I do accept the senior constable's evidence that there was no indication that the accused was under the influence of drugs when he spoke to him,  and in fact by that time the accused had been in police custody since the previous day.

Nevertheless, the accused is a mature man.  He has, as Senior Constable Lunney was aware, an extensive criminal history and he is, as I observed, capable of expressing himself clearly.  Senior Constable Lunney formed the view that the accused was not disadvantaged however, he failed to clearly and unambiguously offer the accused a support person for the interview and he did not notify the Aboriginal and Torres Strait Legal Service that he wanted to question the accused about these offences.

This was contrary to Senior Constable Lunney's obligation under Section 36 of the Police Responsibilities Code which is schedule 10 to the Police Powers and Responsibilities Regulations. Section 4 20 of the Police Powers and Responsibilities Act was not strictly complied with. Senior Constable Lunney said that he formed the view that the accused was not at a disadvantage and therefore that Section 4 20(2) did not apply. That view was misconceived.

Although the accused is a mature man he is clearly indigenous. He has a long criminal history and is a drug user. He left school halfway through grade nine, although he told Senior Constable Lunney he completed year 12 by correspondence in 2005, apparently whilst in prison. Those facts were clear to Senior Constable Lunney and it was not reasonable therefore for him to suspect that the accused was "not at a disadvantage in comparison with members of the Australian community generally". I quote there from Section 4 20(3) of the Police Powers and Responsibilities Act. Extra care therefore needed to be taken to ensure that the accused understood his rights.

During the recorded interview, however, the accused was advised of his right to telephone - or to tell a friend, relative or lawyer where he was and to attempt to arrange to have someone present during the questioning.  He was also asked if he wished to contact the Aboriginal Legal Aid in Murgon.  The accused declined these offers and when asked why he didn't want to contact the Aboriginal legal service his reply was, "I feel okay."  Then something unintelligible, "This is voluntary".

Senior Constable Lunney then told him that if he changed his mind and wanted to speak to a solicitor he would try and organise for one to come in.  The accused had spoken to a legal representative the day before and there's no suggestion, on the face of the recorded interview or on the evidence heard in this Court, that he was unaware of his rights in that regard. 

In all the circumstances I cannot be satisfied that the treatment of the accused by Senior Constable Lunney or the method of questioning was ultimately unfair to the accused or that public policy reasons necessitate the exclusion of the admissions.  Although Senior Constable Lunney did not absolutely and strictly comply with all legislation and Queensland Police Service policy and procedures there is no suggestion of any deliberate or reckless disregard of those provisions and there was, in effect, substantial compliance. 

Having said that I would make the comment that police like Senior Constable Lunney who work in police stations where they're likely to come into contact with and seek to question Aboriginal people on a daily basis, and I note that Murgon is the police station closest to the Cherbourg Aboriginal community, that such police officers should always err on the side of caution and make every attempt to strictly comply with such provisions.

However, in this case it would not, in the circumstances, be unfair to the accused to use the recorded interview against him and I refer in this regard to the principles enunciated by the High Court in R v Swaffield (1998) 192 CLR 149. The accused's application therefore to have the recorded interview excluded at his trial is dismissed.

HER HONOUR:  Now, this trial will have to occur in Kingaroy so do you just want me to send it back to Kingaroy to be called over for a trial date?

MR HOSKIN:  Yes, your Honour.  Mr Bell's now relocated down to a housing commission home in Brisbane.  His bail currently requires him to report to the Wondai Police Station every Monday.  I'd like to make an application to - once I find that he has a permanent residence in Brisbane to change that.  Either if the Crown will drop it altogether, the reporting or wanting to report down in Brisbane.  Could it be mentioned, perhaps one day next week just so I can make that bail inquiry and then we can transfer it back or?  I'm in your Honour's hands.  It's just that‑‑‑‑‑

HER HONOUR:  Yes, we might as well get the bail sorted out.

MR HOSKIN:  Yes, thank you, your Honour.

HER HONOUR:  So, what day would suit you?

MR HOSKIN:  Any day.  Wednesday, Thursday.  Thanks, your Honour.

HER HONOUR:  Okay.  Well, next Wednesday is clear so if I put it down for mention next Wednesday at 9.30.

MR HOSKIN;  Thank you, your Honour.

HER HONOUR:  Are you happy with that, Mr Needham?

MR NEEDHAM:  No difficulty, your Honour.

HER HONOUR:  All right.  So, bail's enlarged at this stage on the same conditions to that time.

MR HOSKIN:  Thank you.

THE MATTER ADJOURNED AT 9.38 A.M. TILL 9.30 A.M. ON WEDNESDAY 31ST OCTOBER 2012