Marks v. Lynn
[2008] QDC 39
•12 March 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
Marks v Lynn [2008] QDC 39
PARTIES:
ANDREW JAMES MARKS
(Appellant)
v
WAYNE BRIAN LYNN
(Respondent)
FILE NO/S:
DIVISION:
Appeal
PROCEEDING:
Section 222 Justices Act Appeal
ORIGINATING COURT:
Magistrates Court
DELIVERED ON:
12 March 2008
DELIVERED AT:
Brisbane
HEARING DATE:
4 March 2008
JUDGE:
Searles DCJ
ORDER:
1. Appeal allowed;
2. Convictions be set aside;
3. Respondent to pay Appellants cost of Trial and Appeal totalling $3911.27
CATCHWORDS:
Judges’ Rules; discretion to exclude confession evidence on ground of unfairness;
COUNSEL:
Appellant – P. Goodwin
Respondent – R. Pointing
SOLICITORS:
Appellant – Skewes & Dempster
Respondent – Director of Public Prosecutions
The appellant appeals pursuant to s 222 of the Justices Act 1886 against his conviction on 12 December 2007 of two simple offences in the Longreach Magistrates Court. The appeal is by way of rehearing.[1]
[1]Justices Act 1886 s 223; Builders’ Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62 per Mason J.
The charges were, firstly, of driving a motor vehicle whilst being a disqualified driver, and secondly for driving an unregistered vehicle. Both offences were alleged to have occurred on 2 March 2007 at Longreach and the vehicle in question was a quad four-wheeler.
His prosecution initially involved a further indictable charge of dangerous operation of the above motor vehicle, but as a result of a voir dire to which I shall later refer, the prosecution of that charge did not proceed.
The prosecution case in relation to the simple offences was based entirely upon a taped interview of the appellant conducted by the only Crown witness Sergeant Lynn.
Grounds of appeal
The appellant appeals the convictions on three grounds:-
(a) That the learned Magistrate erred in law in admitting into evidence the Record of Interview between the Complainant and the Defendant at the Longreach police station on the 3rd March 2007;
(b) That the said convictions were wrong in and contrary to law;
(c) That the said convictions were against the evidence and the weight of the evidence.
Voir dire
Mr Mumford, counsel for the appellant, objected to the Record of Interview of 3 March 2007 being admitted in evidence against the appellant in relation to all three offences (one indictable, two simple) and a voir dire was held. Before dealing with the police interview it is of assistance to outline the prosecution’s case. Sergeant Lynn gave evidence that he saw the appellant driving the vehicle on the morning of 3 March 2007 with two other persons on board and with what appeared to be a stubbie of beer between his legs. He activated his siren and lights to have the appellant stop but the appellant, according to Sergeant Lynn, ignored that and drove off. It was that driving which was the subject of the discontinued indictable charge of dangerous operation of the vehicle.
Later in the morning of 3 March 2007 at approximately 9:20 am the appellant presented himself at the police station to report the theft of the subject vehicle and it was at that point that Sergeant Lynn commenced a taped interview. The Record of Interview is Schedule A to this judgment.
It is significant that the above interview related only to the investigation of the indictable offence although it was noted by Sergeant Lynn at one stage that the riding of the vehicle to Kempson’s home on the previous day, 2 March 2007, amounted to another offence.[2] It is also clear from the last statement by Sergeant Lynn at the end of the interview that he was not intending to charge the appellant with any offence arising from his riding of the vehicle on 2 March. It was only after speaking to the appellant’s solicitor Mr Dempser that he decided to charge the appellant in relation to his riding the vehicle to which both the charges the subject of this appeal relate to.
[2] Record of Interview page 3 line 60.
At the conclusion of the voir dire the learned Magistrate gave his decision in these terms:-[3]
“BENCH: In respect of the voir dire – in respect to the record of interview it is clear and it has been conceded by Senior Constable Schick that the requirements as per s 418 as required to be administered, when a person is being questioned about an indictable offence, were not and as such I rule that that tape is inadmissible in respect of the indictable offence. Same requirement is not applicable for the other matters, and in that case it is admissible in respect of those matters.”
[3] Trial transcript page 15 line 10.
The s 418 referred to by the learned Magistrate was s 418 of the Police Powers and Responsibilities Act 2000 (Act) which provides:-
“418 Right to communicate with friend, relative or lawyer
(1)Before a police officer starts to question a relevant person for an indictable offence, the police officer must inform the person he or she may:-
(a)telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning; and
(b)telephone or speak to a lawyer of the person’s choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning.”
Also relevant is s 431 of the Act which provides:-
“431 Cautioning of persons
(1)A police officer must, before a relevant person is questioned, caution the person in the way required under the Responsibilities Code.”
The Code referred to is to be found in Schedule 10 to the Police Powers and Responsibilities Regulation 2000 (Regulation) and relevantly s 37 of that Code provides:-
“37(1) A police officer must caution a relevant person about the person’s rights to silence in a way substantially complying the following:
‘Before I ask you any question I must tell you that you have the right to remain silent.
This means you do not have to say anything, answer any question or make any statement unless you wish to do so.
However, if you do say something or make a statement, it may be later used in evidence. Do you understand?’”
Section 414 of the Act provides that Part 3, in which s 431 is found, applies only to indictable offences so that s 431, and the Code referred to in that section have application only to indictable offences.
Returning to the learned Magistrate’s decision on the voir dire, it is clear he correctly excluded the above Record of Interview in relation to the indictable offence on the ground that Sergeant Lynn failed to comply with the Act and Regulation when questioning the appellant. However in relation to the simple offences, his Honour declined to exclude the Record of Interview on the basis that the Act and Regulation did not apply to simple offences.
His Honour’s conclusion in relation to the non-applicability of the Act and Regulation to simple offences was correct but, with respect to his Honour, that was not the end of the matter on the issue of the admissibility of the Record of Interview in relation to those offences. Quite apart from the Act and Regulation, his Honour had a discretion obliging him to determine by reference to common law principles, whether or not to exclude the Record of Interview in relation to the simple offences.
Judges’ Rules
In 1912 the judges of the King’s Bench approved a set of rules, commonly known as the Judges’ Rules, as a guide to police officers questioning suspects to ensure fairness in that questioning. Those Rules were subsequently modified in Great Britain. Neither the original nor the later versions have ever had the force of law in Australia,[4] but that is not to say the Australian courts have proceeded unmindful of the existence and good sense of those Rules. In Van Der Meer v R[5] the High Court discussed the place of those rules in the Australian judicial system and at paragraph 16 Chief Justice Mason said:
[4]Criminal Law Amendment Act 1894 s 10 annotations.
[5] [1988] HCA 56.
“It has been repeatedly stated that the Judges’ Rules do not have the force of law in Australia. It is worthwhile repeating the statement made by the Chief Justices of the Commonwealth, the Australian States and New Zealand at the conclusion of their conference in New Zealand on February 1965. The statement was in these terms:
‘1. Neither the old nor the new English Judges’ Rules have the force of law in Australia or in New Zealand. In considering whether confessional statements made by persons charged with crimes ought to be admitted in evidence the Australian and New Zealand courts have taken into account whether police officers have complied with the spirit of those Rules. But our courts have never regarded compliance or non-compliance as a decisive factor and have always emphasised that it is for the court to take into account all the circumstances of an individual case in determining whether a confessional statement should be admitted.
2. The Australian Chief Justices emphasised that they had no authority to make any such rules. It is for the authorities in charge of the various police forces to make their own rules for the good conduct and guidance of their officers. The judges are always on guard to ensure that fair conduct is observed by the police in the examination of suspects. The law requires a judge to determine whether in the light of all the circumstances of a case there are elements of unfairness in the use made by the police of their position in relation to the accused that a confession alleged to have been made by him ought to be rejected. There is a right of appeal against a decision of a judge admitting an incriminatory statement.’”
Nature of discretion
The majority in Van Der Meer, Wilson, Dawson and Toohey JJ, said that the precise status of the Judges’ Rules in Queensland did not appear to have been decided but that it was apparent from authorities they cited that the Rules were regarded by the Judges as a yardstick against which questions of impropriety and unfairness may be judged.[6] In that context their Honours said:-
[6] [1988] HCA 56 at [20].
“The relevant principles are clear. They were summed up by Gibbs CJ in Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, at p. 5 in this way:
‘A confession will not be admitted unless it was made voluntarily, that is in the exercise of a free choice to speak or be silent. But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused.’”[7]
[7] [1988] HCA 56 at [18].
In considering whether a confessional statement should be excluded, the majority in Van Der Meer said that the relevant question was not whether the police have acted unfairly, but whether it would be unfair to the accused to use his statement against him.[8]
[8] [1988] HCA 56 at [21].
Section 10 of the Act makes it clear that, unless excluded by statute, these principles apply to all offences, indictable or simple. Section 10 provides:-
“This Act does not affect the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion or stay the proceedings in the interests of justice.”
Returning now to the subject Record of Interview. It is clear the learned Magistrate did not address the issue of whether or not the circumstances surrounding the Record of Interview were such as to trigger the exercise of his discretion to exclude it on the basis of the above principles. In failing to direct his mind to that question I consider his Honour fell into an error of law. It was not sufficient, in my view, to consider only the operation of the Police Powers and Responsibilities Act 2000 and its operation upon the subject simple offences. It was necessary to ask the further question whether, having regard to all the circumstances surrounding the Record of Interview, it would be unfair to the appellant to allow the use of his statement against him. That question was not addressed.
Without setting out the full content of the Judges’ Rules or their subsequent manifestations, it is sufficient to refer to the content of some of them. Ones which I think are relevant are:-[9]
[9] Judges’ Rules approved 1964 (1978) 67 CR. AP. R. 191-199 – Criminal Law Amendment Act 1894 s 10 annotations, page 695.
“I …
IIAs soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.
III (a) Where a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms:-
‘Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.’
(b) It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. …
Before any such questions are put the accused should be cautioned in these terms:-
‘I wish to put some questions to you about the offence with which you have been charged (or about the offence for which you may be prosecuted). You are not obliged to answer any of the questions, but if you do the questions and answers will be taken down in writing and may be given in evidence.’”
As I have said, none of these Rules are rules of law in Australia and the breach of any of them does not, ipso facto, result in the subject evidence being rendered inadmissible. What the Rules do is to assist the Court by reference to the spirit of the Rules to determine whether or not the test articulated in Van Der Meer has been satisfied, that is whether it would be unfair to the accused to use his statement against him.
In my view there were several unsatisfactory aspects of the police Record of Interview which, collectively, rendered it unfair to allow the interview to be admitted in evidence against the appellant. They are:-
(a) The appellant attended the police station for the sole purpose of reporting the theft of his vehicle.
(b) He was not at any time told that he was going to be interviewed in relation to the subject simple offences.
(c) No caution was ever given in relation to the simple offences.
(d) The appellant was placed under arrest for the indictable offence and, hence, was in police custody at a very early point in the interview.[10]
(e) The questioning by Sergeant Lynn related only to the indictable offence of 3 March 2007 and not the simple offences here under consideration. That is evidenced by the final statement of Sergeant Lynn in the Record of Interview where he stated to the appellant that it was not until after he spoke to the appellant’s solicitor Mr Dempser that he had decided to prosecute the appellant for the two simple offences.[11] The conversation with Mr Dempser occurred at the tail end of the interview after the appellant had answered all questions other than whether he wanted to participate in a formal interview.
[10] Record of Interview page 1 line 60; R v Smith (1957) 97 CLR 100 per McTiernan J paragraphs [7] and [14]; Williams J paragraph [9] and Taylor J paragraph [7].
[11] Last paragraph Record of Interview.
To allow the interview to be admitted would involve accepting:-
[a] that it was acceptable for a police officer to interview a person charged with, and arrested for, an indictable offence, on the basis that the questioning related to that, and no other, charge;
[b] for the police officer to then ask questions in proof of another unnotified offence;
[c] for him to then collect all the necessary evidence in relation to that latter offence;
[d] to then charge the interviewee with that latter offence, not having earlier identified it, informed the interviewee he was to be charged with it, or cautioned the interviewee.
That, to my mind, smacks of an ambush and exemplifies the type of unfairness the Judges’ Rules and the principle in Van Der Meer were designed to avoid.
I find that the learned Magistrate erred in failing to consider the exercise of his discretion to determine whether or not to exclude the Record of Interview on the basis of unfairness to the accused. I find further that a proper exercise of that discretion should have resulted in the Record of Interview being excluded.
Other grounds of appeal
Because of my findings in relation to the above it is unnecessary for me to consider any other of the grounds of appeal.
Further, because, once the Record of Interview is excluded, there is no other evidence against the appellant, it is appropriate that the convictions be set aside.
Orders
I order that the appeal be allowed and that the conviction of the appellant on the two simple offences be set aside. I further order that the respondent pay the appellant’s costs of this appeal. As to the costs of the prosecution, given that the only evidence against the appellant was the Record of Interview which should never have been used against him, I consider it appropriate that the respondent also pay the appellant’s costs of the prosecution. I so order. By reference to the Justices Regulation 2004 Schedule 2, the agreed costs of the trial will be professional costs of $1500 plus disbursements [airfares] of $611.27 a total of $2111.27.As to the appeal, the agreed costs will be $1800 professional costs, an all up total of $3911.27.
SCHEDULE A
RECORD OF INTERVIEW
MARKS: Hello hello.
LYNN: Sit down, what can I do for you?
MARKS: My bike’s been stolen big fella.
LYNN: Don’t call me big fella.
LYNN: What bike you talking about.
MARKS: The four-wheeler.
LYNN: Righto mate, you were riding that bike this morning when I observed you ok. Any comment to make to that.
MARKS: No.
LYNN: You committed a number of offences there this morning ok. I am now going to place you under arrest for those offences. You were riding the bike.
MARKS: I wasn’t riding the bike.
LYNN: Righto you are under arrest for those offences, dangerous operation, evade police, fail to stop for prescribed purpose, disqualified driving ok.
MARKS: I wasn’t riding the bike (inaudible).
LYNN: You were riding it.
MARKS: The bike’s been stolen.
LYNN: I know you Andrew, I seen you, you went straight past me, I indicated for you to pull over. You’ve been home and had a shower. You’re under arrest so just don’t move.
MARKS: Bike’s been stolen mate.
LYNN: Don’t move.
MARKS: Yeah, fair enough, bike’s been stolen.
LYNN: I observed you, I know who you are.
MARKS: No.
LYNN: Have you any comments to make to that.
MARKS: Yeah. Bike’s been stolen.
LYNN: What sort of bike is it.
MARKS: Four-wheeler.
LYNN: Four-wheeler, yeah. What colour?
MARKS: Red one.
LYNN: Is it yours?
LYNN: Where was it stolen from?
MARKS: Ah Aba’s.
LYNN: I warned you, you’re under arrest. So you don’t have to answer any questions ok.
MARKS: Yeah.
LYNN: Do you understand that you are under arrest? Alright, what time was it stolen?
MARKS: How would I know that?
LYNN: When was it, when did you last see it?
MARKS: I rode it there last night.
LYNN: You rode it there last night.
MARKS: Yeah.
LYNN: What time?
MARKS: About nine o’clock.
LYNN: From where?
MARKS: 38 Galah.
LYNN: From what address? Rode it from 38 Galah to what address last night?
MARKS: To Aba’s.
LYNN: Yeah what address is that?
MARKS: I don’t know.
LYNN: You’re telling the story, where did you ride it to?
MARKS: Aba’s.
LYNN: Street?
MARKS: I don’t know.
LYNN: Street?
MARKS: I don’t know which street (inaudible).
LYNN: What street number?
MARKS: 14.
LYNN: Who’s house?
MARKS: Aba’s.
LYNN: What’s his name?
MARKS: Aba Kempson.
LYNN: Aba Kempson.
LYNN: You rode it down there?
MARKS: Yeah.
LYNN: (sic) What road did you go on, when you rode it down (inaudible).
LYNN: You are disqualified, so you say you committed another offence for that last night. Ok.
MARKS: Fair enough.
LYNN: Alright you realise that? You rode it last night did you go down the back laneway? Rode out the back laneway, from the back of your parent’s place? You didn’t? How did you get there?
MARKS: I walked it.
LYNN: Walked it you just told me you rode it.
MARKS: I walked.
LYNN: Righto now just give me a few more details about it. Four-wheeler was stolen from, at Aba, what’s his name?
MARKS: Aba Kempson.
LYNN: Aba Kempson and where does he work?
MARKS: Railway.
LYNN: He works on the railway, alright what’s his address.
MARKS: (inaudible).
LYNN: I’ll need to know that.
MARKS: (inaudible).
LYNN: You’re (inaudible) trying to tell me your bike has been stolen ok I’ll need some details you need to tell me where he lives.
MARKS: 14 up near the railway there.
LYNN: On the main road Eagle Street.
MARKS: No, you got a map, I’ll show you.
LYNN: Ah yeah just wait there. So at 38 Galah Street about nine o’clock you road it down there.
MARKS: I didn’t ride it down there I pushed it.
LYNN: You told me before you rode it.
MARKS: I pushed it.
LYNN: You told me before you rode it so you’ve changed your mind a bit there?
MARKS: Pushed it.
LYNN: Alright I will just continue to warn you, you are under arrest ok.
MARKS: Yes.
LYNN: If you don’t mind sitting down. Righto, how long have you owned the motorcycle, the quad?
MARKS: About three or four years.
LYNN: Is it registered?
MARKS: No.
LYNN: Not registered.
LYNN: How many seater is it how many people can it hold.
MARKS: One.
LYNN: One person.
LYNN: I’m going to ask you some further questions about what happened this morning ok. Just be warned that you are not obliged to answer any questions do you understand that?
MARKS: Yeah.
LYNN: Righto I saw you at ten past seven as I was going along Wompoo Road you were riding the bike, with what appeared to be a stubbie between your legs, a beer or tin I’m not sure. You got any comment to make to that?
MARKS: Na.
LYNN: Righto there were two other persons on the motorbike, on the quad bike have you any comment to make to that. I indicated to you with a hand gesture for you to pull over, you did not, you drove straight past me, have you any comment to make of that.
LYNN: Can you answer yes or no?
MARKS: It wasn’t me.
LYNN: It wasn’t you, then you went past me and made a right hand turn into Coot Street and do you have comment to make to that?
LYNN: I activated the lights and siren of the police vehicle in Coot Street for you to pull over, you failed to do that, have you got any comment to make to that.
LYNN: You then went along Grebe Street, and accelerated away from me, I continued to observe it was you riding the motorcycle, you turned right, went towards a cemetery and Gin Creek. Have you any comments to make to that.
MARKS: Na, I wasn’t me.
LYNN: Ok.
MARKS: It wasn’t me (inaudible).
LYNN: Um, to what, where have you been this morning? Where did you sleep last night?
MARKS: At home.
LYNN: At Galah Street. What time did you come from there?
MARKS: (inaudible). Went to his place for a barbie.
LYNN: At what, early this morning, so what time would you have got to your mum’s place this morning?
MARKS: Half past eight, nine o’clock.
LYNN: Half past eight, nine o’clock. I was there at ten past eight at your place knocking on the front door yeah.
MARKS: (inaudible).
LYNN: Was your mum and dad home?
MARKS: Um, yeah (inaudible).
LYNN: So did you sleep there last night?
MARKS: Yep.
LYNN: You were there this morning.
MARKS: (inaudible).
LYNN: You were there this morning, mum and dad were there this morning. They saw you there this morning?
MARKS: Yeah.
LYNN: Was anyone else there this morning?
MARKS: (inaudible).
LYNN: Yep, righto, so you slept there last night?
MARKS: Yeah (inaudible).
LYNN: From what time, can you give me a rough idea.
MARKS: (inaudible).
LYNN: Half past nine to eight thirty this morning you were still there? Yeah, alright, were you there the whole night?
MARKS: Yeah.
LYNN: You told me earlier that you rode the quad bike at nine thirty around to your mate’s place last night.
MARKS: No I didn’t ride the quad bike around.
LYNN: Do you want me to play the tape.
MARKS: (inaudible).
LYNN: Alright, cause I’m taping this conversation.
MARKS: Yep.
LYNN: So you’re there all night, so your parents can verify that stop. If we get statements off them to verify that.
MARKS: Yeah.
LYNN: Do you realise that you’re disqualified at the moment. Do you want me to take a complaint of your vehicle being stolen? What time would it have been stolen?
MARKS: (inaudible).
LYNN: I must warn you that if I take your complaint for unlawful use, you are committing an offence for making a false complaint to police, you need to think about that think long and hard about it. Alright.
MARKS: (inaudible).
LYNN: Alright, now, I’ll just outline to you what I have heard on the motorcycle ok, what on the quad, now what street do you think he lives in? Your mate Aba Kempson.
MARKS: Along the railway line.
LYNN: On the where the railway, where the railway houses are, near chicken ravenscroft house is, where the ambulance station is. That street there.
MARKS: Next to the ambulance station.
LYNN: He lives next to the ambulance station?
LYNN: Ok no worries, so you said before you went there last night at around nine thirty?
MARKS: (inaudible) Could be later.
LYNN: Righto and how long were you there.
MARKS: (inaudible).
LYNN: How long were you there?
MARKS: When I dropped it off there.
LYNN: Drop it off there, righto and what time did you get home.
MARKS: Don’t know.
LYNN: You don’t know, after midnight?
MARKS: (inaudible).
LYNN: Thank you, it was after midnight.
MARKS: Don’t know.
LYNN: Don’t know, you told me before, bearing in mind you are under arrest and you don’t have to answer any further questions, I’ll keep warning you about that. You told me before that you now, the story’s changed a couple of times, why would that be, because you told me that you rode the quad around there at nine thirty, around your mate’s for a couple of hours and then you said no you pushed it, you then told me on the third story that you stayed all night at your mother’s early this morning til eight thirty. Alright.
MARKS: (inaudible).
LYNN: Alright. What’s it valued at your quad bike?
MARKS: (inaudible).
LYNN: No idea righto ok.
LYNN: (sic) Stop the tape at nine thirty.
(10:42 am)
LYNN: Andrew I just see that you spoke to the solicitor Mr Dempster but what I want to do is get you to partake in a formal interview in respect of the matters I spoke to you earlier about, you were previously placed under arrest now have you received any advice from Mr Dempster in relation to those matters.
MARKS: (inaudible).
LYNN: And do you wish to partake in a formal interview in respect of those matters.
MARKS: Yep.
LYNN: So you do want to do a formal interview.
MARKS: Yep.
LYNN: Ok no worries alright I’ll stop the tape.
(10:45 am)
LYNN: Righto Andrew you just indicated to me before that you wish to partake in an interview, what would you like to do now?
MARKS: Walk out of here mate.
LYNN: Righto, so you don’t want to take part in a formal interview ok.
LYNN: (sic) I’ll just tape the conversation. I spoke to Mr Dempster before about, the bit about, you informed me that you rode around there ok initially when you took it around there the first time do you recall that.
MARKS: No.
LYNN: Anyway I’ll read, I said to Mr Dempster that I probably wouldn’t take any action and breach you in relation to that but I’ve changed my mind and I’m gonna. I’m gonna take some action against you so I’m going to issue another notice to appear in relation to that offence last night also ok. Bear in fact that you did ride it around there and changed your story. So do you understand that. Righto he’s just shaking his head so I’ll also give you a notice to appear for that offence, the offence last night. That you rode it around there.
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