Byers v The Commissioner of Police - [2022] QDC 98

DISTRICT COURT OF QUEENSLAND

CITATION:

Byers v The Commissioner of Police [2022] QDC 98

PARTIES:

Dylan James Byers (Appellant)

v

The Commissioner of Police (Respondent)

FILE NO/S:

BD 1767 of 2021

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

4 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2022

JUDGE:

Kefford DCJ

ORDER:

1. The appeal is allowed, and the conviction is quashed.

2. The appellant is acquitted of the charge of dangerous operation of a motor vehicle. He is discharged in respect of that charge.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – where the appeal against conviction was brought pursuant to s 222 of the Justices Act 1886 (Qld) – whether the conviction was unsafe and unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – IMPROPER ADMISSION OF EVIDENCE – ADMISSIONS – where police interview was conducted with the appellant – where there was no strict compliance with s 418 and s 431 of the Police Powers and Responsibilities Act 2000 – whether there was substantial compliance with the obligation to advise the appellant of his right to have a lawyer present – whether the electronically recorded interview should be excluded in the exercise of the discretion

LEGISLATION:

Criminal Code (Qld), ss 668E, 669

District Court of Queensland Act 1967 (Qld), s 113

Justices Act 1886 (Qld), ss 222, 223, 225

Police Powers and Responsibilities Act 2000 (Qld), ss 5, 7, 418, 431, sch 6

Police Powers and Responsibilities Regulation 2012 (Qld), s 28, sch 9

CASES:

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, applied

Foster v The Queen [1993] HCA 80; (1993) 67 ALJR 550; (1993) 66 A Crim R 112, applied

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, applied

Lee v Lee & Ors [2019] HCA 28; (2019) 266 CLR 129, applied

The Queen v Swaffield [1998] HCA 1; (1998) 192 CLR 159, applied

R v LR [2005] QCA 368; [2006] 1 Qd R 435, applied

COUNSEL:

E J Engwirda for the Appellant

B R Crook (sol) for the Respondent

SOLICITORS:

Donnelly Law Group for the Appellant

Office of the Director of Public Prosecutions for the Respondent

TABLE OF CONTENTS

Introduction

What are the grounds of appeal?

What is the nature of the appeal?

What was the prosecution’s case at trial?

What were the findings of the Magistrate about the admissibility of the electronic record of interview?

What facts emerge from the electronic record of interview?

Was there compliance with the requirements of the Police Powers and Responsibilities Act 2000?

Should the record of interview have been excluded?

Should the record of interview have been excluded based on unfairness to the appellant?

Should the record of interview have been excluded based on the public policy discretion?

Is the conviction unsafe and unsatisfactory?

Orders

Introduction

This is an appeal, under s 222 of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Byers v The Commissioner of Police

Details

AGLC: Byers v The Commissioner of Police [2022] QDC 98
Case: [2022] QDC 98
Decision Date: 4 May 2022

CaseChat Overview and Summary

In Byers v The Commissioner of Police, the appellant appealed against his conviction for dangerous operation of a motor vehicle. The appeal hinged on the admissibility of a police interview conducted with the appellant, focusing on whether the interview was conducted in substantial compliance with the Police Powers and Responsibilities Act 2000. The central issue was whether the appellant's rights under s 418 and s 431 of the Act were adequately communicated, considering the police officer did not use the exact statutory wording during the interview. The court needed to decide if the interview should be excluded despite the absence of strict compliance with the statutory requirements, and if the appellant's rights were effectively protected.

The court examined the electronic record of the interview, considering the statements made by the police officer and the appellant's father, who acted as a support person. The Magistrate found that substantial compliance with the statutory obligations was achieved. The appellant's father explicitly mentioned the ability to stop the interview for legal advice, which the court interpreted as sufficient communication of the appellant's right to consult a solicitor. The court reasoned that the appellant understood his rights and voluntarily chose not to exercise them, thus the interview was deemed admissible. The court concluded that the appellant's rights were not diminished and the interview did not render the conviction unsafe and unsatisfactory.

Consequently, the appeal was allowed, and the conviction was quashed. The appellant was acquitted of the charge of dangerous operation of a motor vehicle and discharged in respect of that charge.

Orders

Orders of the court

1. The appeal is allowed, and the conviction is quashed.

2. The appellant is acquitted of the charge of dangerous operation of a motor vehicle. He is discharged in respect of that charge.

Background

Background to the litigation

In ruling on the voir dire, the learned Magistrate said:“This is an argument as to whether the admissibility of the record of interview conducted between the defendant and police regarding this offence is admissible, and it centres on the warnings given by the police to the defendant at the start of the interview within the first seven minutes of it. There’s no dispute, or it seems no dispute, the precise words as required by the section, or set out in the section I should say, were not used by the interviewing police officer at the time of the interview. But, in my view, substantial compliance with the requirements of the section 418 of the PBRA is made out. The defendant knows he can have a friend or relative present. His dad is there. And his dad says out loud, in front of the defendant, in a clear way, what he knows his role to be, including if he thinks that the interview is unfair that he can stop it. His father also says out loud, and next to the defendant, that the father can stop the interview for legal advice. The only reasonable interpretation of this in the context is legal advice for the son. I do not accept that anyone could really strain to think that means legal advice for the person as a support person at that time. He was there supporting his son, and that would be what the legal advice would be for.Now, further, the defendant knows, or knew at the time, he was not under arrest. He knew he was there voluntarily for the interview. And he acknowledged that he did not have to say anything to the police. He was told that he could call a lawyer to tell them where he was for an interview. The only reasonable way to see that phrase is that he could call the solicitor for legal advice. What else would he do it for? It would not make sense at all to any person simply to tell them the location of him. It seems plain to me that he would do it for legal advice. That’s what you call lawyers for. He had already had a support person, so he didn’t need to call a support person. The support person articulated that the interview could be stopped for legal advice. The defendant, after hearing the statement from the police officer, which wasn’t in the most fulsome terms as set out in the section, but certainly in substantial compliance with it – after hearing that statement about contacting a lawyer, turns to his support person, his father, who had not so long earlier said the interview could be stopped for legal advice, to seek guidance from him, it seems. And looked to him as to what to do. And it seems, following that look, decided to push on anyway. So he knew that he could stop the interview. He knew that he could contact a solicitor, and he chose not to do that.…He acknowledged earlier that he had a right to silence. He acknowledged that he could speak to a solicitor if he wished, and he wished to push on voluntarily, and he didn’t wish to contact a solicitor. And the only reason to contact a solicitor would be for advice, in my view. In my view, all of the words said and the interactions at the interview room satisfy me that he understood the rights to consult a solicitor and to seek advice from them about what to say to police, and he chose not to do so. The words were in substantial compliance with the provision. It was not unfair. His rights have not been diminished in any way. The interview is, therefore, admissible.”What facts emerge from the electronic record of interview?

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Byers v The Commissioner of Police [2022] QDC 98
PARTIES:	Dylan James Byers (Appellant) v The Commissioner of Police (Respondent)
FILE NO/S:	BD 1767 of 2021
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Richlands
DELIVERED ON:	4 May 2022
DELIVERED AT:	Brisbane
HEARING DATE:	29 April 2022
JUDGE:	Kefford DCJ
ORDER:	1. The appeal is allowed, and the conviction is quashed. 2. The appellant is acquitted of the charge of dangerous operation of a motor vehicle. He is discharged in respect of that charge.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – where the appeal against conviction was brought pursuant to s 222 of the Justices Act 1886 (Qld) – whether the conviction was unsafe and unsatisfactory CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – IMPROPER ADMISSION OF EVIDENCE – ADMISSIONS – where police interview was conducted with the appellant – where there was no strict compliance with s 418 and s 431 of the Police Powers and Responsibilities Act 2000 – whether there was substantial compliance with the obligation to advise the appellant of his right to have a lawyer present – whether the electronically recorded interview should be excluded in the exercise of the discretion
LEGISLATION:	Criminal Code (Qld), ss 668E, 669 District Court of Queensland Act 1967 (Qld), s 113 Justices Act 1886 (Qld), ss 222, 223, 225 Police Powers and Responsibilities Act 2000 (Qld), ss 5, 7, 418, 431, sch 6 Police Powers and Responsibilities Regulation 2012 (Qld), s 28, sch 9
CASES:	Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, applied Foster v The Queen [1993] HCA 80; (1993) 67 ALJR 550; (1993) 66 A Crim R 112, applied Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, applied Lee v Lee & Ors [2019] HCA 28; (2019) 266 CLR 129, applied The Queen v Swaffield [1998] HCA 1; (1998) 192 CLR 159, applied R v LR [2005] QCA 368; [2006] 1 Qd R 435, applied
COUNSEL:	E J Engwirda for the Appellant B R Crook (sol) for the Respondent
SOLICITORS:	Donnelly Law Group for the Appellant Office of the Director of Public Prosecutions for the Respondent