Maynard v Brown

[2000] TASSC 47

[2000] TASSC 47

CITATION:                 Maynard v Brown [2000] TASSC 47

PARTIES:  MAYNARD, Roy David
  v
  BROWN, Graeme Maxwell

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 81/1999
DELIVERED ON:  18 May 2000
DELIVERED AT:  Hobart
HEARING DATE:  30 March 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Police interrogation - Propriety of police questioning and other conduct by police - Judges' Rules, police instructions and Standing Orders - Generally - Whether unfair to use admission where not given further formal warning that may be charged with a different crime.

Szach v R (1980) 2 A Crim R 321, referred to.
Aust Dig Criminal Law [430]

REPRESENTATION:

Counsel:
             Applicant:  T L McDermott
             Respondent:  M M Miller
Solicitors:
             Applicant:  T L McDermott
             Respondent:  Director of Public Prosecutions

Judgment  Number:  [2000] TASSC 47
Number of paragraphs:  12

Serial No 47/2000
File No LCA 81/1999

ROY DAVID MAYNARD v GRAEME MAXWELL BROWN

REASONS FOR JUDGMENT  COX CJ

18 May 2000

1. The applicant was convicted on complaint of one count of dishonestly acquiring a financial advantage.  The particulars read as follows:

"Charge Dishonestly acquiring a financial advantage Breach of section 252A(1) Criminal Code Act 1924

PARTICULARS

You are charged with on or about 13 May 1997 at Hobart in Tasmania you aided and abetted Kevin Paul Wolf to obtain a financial advantage by deception from ITAC (Indigenous Tasmanians Aboriginal Corporation) in that you authorised the payment of a travelling allowance in the sum of $279.59 to Kevin Paul Wolf which you were aware he was not entitled to."

1. Evidence was given that both the applicant and Mr Wolf were office holders of the Indigenous Tasmanians Aboriginal Corporation ("ITAC") and that the applicant had the use of an ITAC motor vehicle registered number DN - 7930.  They had attended a meeting in Launceston in April 1997, described as a "TIC meeting of directors".  Mr Wolf was authorised to use his own private vehicle to attend it and to receive a travelling allowance per kilometre travelled therein.  Some time in early May 1997, Mr Manson, the office manager of ITAC, received a Traffic Infringement Notice addressed to ITAC as the registered owner alleging that the vehicle had been speeding on High Street in Campbell Town on 21 April 1997.  He forwarded it to the applicant, as the car was issued to him.  Shortly prior to 15 May 1997, an invoice for $279.59 for "return trip 53.5 c per klm" was received by Mr Manson from Mr Wolf in respect of his private car.  It was signed by the applicant and passed by Mr Manson to the office girl, who drew a cheque in that amount and sent the cheque, after it had been signed by the applicant and Mr Wolf, to the latter.  It was accompanied by a document printed "Remittance Advice" dated 13 May 1997 and inscribed (inter alia):

"Paid to Kevin Wolf
…
Balance as per statement for month of May '97
…

Travel allow.

TIC Director's Course.

See attached.  $279.59"

It was negotiated through the Trust Bank to the credit of Mr Wolf's Westpac account.

1. Some time later Mr Manson received a copy of the Traffic Infringement Notice and observed that it was endorsed with a statutory declaration dated 20 May 1997 which read:

"I Wolf, Kevin Paul ….

Declare that at the time of the offence as stated in this notice …

I was the driver of the vehicle."

It purported to have been made before a Commissioner for Declarations.  Recognising the signature of the declarant and suspecting that Mr Wolf may have received a lift in the car issued to the applicant and that he had unlawfully claimed a travelling allowance in respect of his own car when he had not used it, Mr Manson referred the matter to Mr Wallace, who was the Grant Controller of ITAC funds, sending him a copy of the infringement notice and the invoice and remittance advice.

1. The crucial evidence against the applicant consisted of certain admissions made in a video taped interview conducted by Detective Roberts on 2 December 1997.  Objection was taken to it on the basis that in the exercise of his discretion to ensure fairness to the applicant, the learned magistrate ought to have excluded it.  It was not suggested that it was an involuntary statement.  The basis on which it was sought to be excluded as unfair was that the interviewing officer did not identify the precise offence with which the applicant was ultimately charged, thereby misleading him and putting him in a position where he made unguarded and not properly considered responses to the questions asked.

1. The applicant had attended the interview voluntarily and by pre-arrangement.  Detective Roberts got the applicant to identify himself and to give his age, which he said was 52.  Detective Roberts said:

"I wish to ask you some questions in relation to what I believe is a False declaration which has been placed on a Traffic Infringement Notice."

He then gave the applicant a formal warning.  He then got an acknowledgment from the applicant that he had been informed he was not under arrest, had attended voluntarily and that he had spoken to a solicitor prior to coming to the interview and had been advised that he did not have to give any information if he did not want to.  There then followed questions eliciting that the car, DN - 7930, had been on issue to the applicant and garaged at his house; that he and Mr Wolf had attended a conference in Launceston between 16 and 20 April, ie "the TIC one"; that he had used the car in question to travel there, while Mr Wolf had travelled there in his own car; that he had made his way back to Hobart "next morning" after the conference in the same car, while Mr Wolf had returned in his own car; and that he (the applicant) was the driver when the infringement notice was issued.  He then volunteered that Mr Wolf had had a drive and was actually the one who was "booked".  He was then reminded that he had just said that Wolf had come back in his own car.  There then followed a claim that Mr Wolf had run out of water somewhere south of Oatlands and that they had then driven north to procure water in the ITAC car, during which time Mr Wolf had taken the wheel and was the driver when the car was caught speeding in Campbell Town.  This exchange followed:

"QRight, so you're saying that his car ran out of water near Oatlands, you guys drove back to Campbell Town to get water and he got booked rather than drive his car into Oatlands to get water.

A        Mmm.

Q        Doesn't make much sense does it?

A        No.

Q        Why wouldn't you have driven into Oatlands to get water?

A        Umm all right I'll just better tell you the truth.

Q        Mmm, mmm.

AIt's no good of sticking up for him is it.  He was ahh he came with me that night, he came with me to umm to TIC.

Q        Right.

AAnd ahh he come back with me, but he was definitely driving the car and got booked it wasn't me. That's how it happened.

Q        Right, where was his car?

A        Where was his car?

Q        Mmm.

A        Home

Q        So he never ever took his car up?

A        No.

Q        At all?

A        No he didn't."

After further discussion in which the applicant repeated that Mr Wolf was the driver, he was asked why he had told Mr Wallace that he, the applicant, had been the driver and not Mr Wolf.  He did not deny having told Mr Wallace that he was the driver, but said that Mr Wallace "is just throwing bullshit and that to me all the time and I just give it back to him".  It is clear, therefore, that whatever other suspicions the police had, there was some basis for the suggestion that the applicant was in fact the driver at the relevant time and would have been a material witness in any prosecution of Mr Wolf for making a false declaration.  The possibility also existed that the applicant had instigated, aided or abetted Mr Wolf in the commission of that crime.

1. Having again obtained an acknowledgment from the applicant that Mr Wolf had not taken his own car up to Launceston, Detective Roberts obtained an acknowledgment that Mr Wolf had claimed for the use of that car and that the applicant had signed "the approval for him to claim that money".  The applicant was shown a photostat copy of the remittance advice superimposed upon the invoice which Mr Manson said he had received from Mr Wolf seeking payment of $279.59 for "return trip".  He acknowledged that the latter document bore his signature.  The advice partially obscured the invoice and no dates are visible on the latter document.  Asked why he would authorise travelling allowance for Mr Wolf when it was not warranted, the applicant said that Mr Wolf had been going to take his car, but had later decided not to.  Detective Roberts then initiated this exchange:

"QBut this claim was made on the thirteenth of May, after some three weeks after the course has been and gone?  So why would you authorise for travel allowance that he's not entitled to, if you're aware he didn't take his car?

AWell, I don't know mate, I just don't know how to answer.

QA bit of dishonesty on both your parts I believe wouldn't you wouldn't you agree with that, authorising overtime umm travel allowance that people aren't entitled to?  Would you agree with that?

APossibly.

QSo as a matter of course ITAC would be out of pocket the two hundred and seventy nine dollars fifty nine due to this travel allowance claim would that be right?

AWell going back onto this travel claim here, I remember rightly because the money if I remember rightly the money from umm TIC covered that.  Cos' there was a cheque given for TIC."

There followed discussion in which Detective Roberts suggested that even if ITAC were reimbursed by another body, it was still wrong for Mr Wolf to claim money he was not entitled to.  This led to a further exchange:

"QBut do you see what I'm saying; irrespective of whether TIC is covered it or not Kevin has been paid two hundred, almost two hundred and eighty dollars he wasn't entitled to.

AMmm

QAnd you've authorised that.

AWell

QAnd you're fully aware he wasn't entitled to

AI can't deny that can I.

QNo that's right.  So what explanation if any bearing in mind you don't have to give one, why have you authorised that when he wasn't entitled to it.

AWell I authorised it because at the time he was gonna take his vehicle.

QWell irrespective of whether he's gonna take it or not this is three weeks after the course has happened

AYeah.

Q… on the thirteenth of May.  So you have authorised that when you were aware he didn't take his car?

AIs it after it.

Q        Yep, the course finished on the twenty first of the fourth?

A        Right.

Q        And this has been authorised on the thirteenth of the fifth, three weeks later?

A        Well you've got me there."

The interview continued with the applicant insisting that he had not been the driver and was telling the truth about that.  He seems not to have appreciated the impropriety of his having authorised an unjustified claim if that were the case and it is not clear from the questions of Detective Roberts and his colleague about how many demerit points the applicant had already accumulated and hence might have had a motive to persuade Mr Wolf to falsely claim to have been the driver of the ITAC car whether they were, at the end of the interview, persuaded where the truth lay.  Detective Roberts did not then announce whether the applicant would be charged and, if so, with what offence.

1. The learned magistrate held a voir dire in respect of the interview.  On it, Detective Roberts gave evidence that his investigation initially was in respect of a false declaration and had been commenced because he had received a complaint from ITAC that the declaration on the back of the Traffic Infringement Notice had been falsely filled in.  Mr Manson had also provided a photostat copy of the Travel Claim Invoice and Remittance Advice.  After the interview, Detective Roberts had arranged for Mr Wolf to be interviewed in Queensland.  The court records reveal that the complaint was taken out on 2 February 1998 and served on the applicant at his home at Kingston on 7 February 1998.  In the course of a short cross-examination of Detective Roberts, this exchange occurred:

"Detective Roberts, now you stated in your evidence that you were only going to question Mr Maynard in the interview in relation to the false declaration?  …  I don't recall the word 'only' being used in there.  The allegation was that I wished to speak to him in relation to a false declaration.

And did you say at the beginning of that interview that you were - you were going to ask him questions in relation to that, the false declaration?  … Did I say that I was going to ask questions in relation to the false declaration - yes.

Did you have in mind at that time to ask him questions in relation to the travel allowance for the TIC course?  …  It depended how the interview in relation to the infringement notice panned out.  For instance, if Mr Maynard admitted to being the driver of the vehicle and Mr Wolf - sorry Mr Wolf for instance being - if the interview had have panned out that the charges in relation to the false declaration went through, it would have been no need to produce the remittance advice, so that was why it wasn't presented at the earlier opportunity.

But it was in your mind to question him in relation to that should -  …  Not at the start no, it depended how the interview panned out in relation to the false declaration allegation.

And if the answers that you received were different from what you expected, then you would seek to ask him questions in relation to that?  …  Naturally."

No suggestion was made that the detective had acted improperly, nor was he questioned about his state of mind as to what offence he considered had been committed.  He was not asked if he had at any time during the interview made up his mind to charge the applicant and, if so, with what offence.  Although the learned magistrate made no finding, it would seem that no charge was laid until some weeks after the interview, probably after Mr Wolf was spoken to in Queensland.  The applicant gave no evidence on the voir dire, nor indeed on the trial.

1. In these circumstances, I can see no basis for asserting that the applicant was treated unfairly or that it would be unfair to him to use his statement against him on his trial.  The prima facie obligation to warn a person interviewed is encapsulated in the Judges Rules, r2 (and repeated in substance by Police Commissioner's Standing Orders) as "Whenever a police officer has made up his mind to charge a person with a crime he should first caution such person before asking him any questions, or any further questions, as the case may be".  Such a warning was, in fact, administered at the beginning of the interview and the receipt of advice from a solicitor prior to the interview that the applicant did not have to give any information if he did not want to was acknowledged.  There was no direct evidence of the interviewing officer's state of mind about whether to charge the applicant and even at the end of the interview it was not clear whether the applicant had admitted complicity in respect of a false claim for a travelling allowance of $280 rather than in respect of a false declaration by reason of perceiving such an admission as the lesser of two evils.  The applicant was not in custody, the obligation to warn him in accordance with the Criminal Law (Detention and Interrogation) Act 1995, s4(5) did not arise, nor for the purposes of that Act was a breach of the Criminal Code, s252A a "serious offence", although the crimes of perverting justice or making a false declaration were.

1. It is submitted that at least by the time that admissions had been made to the effect that Mr Wolf had not driven his own vehicle to Launceston but had come with the applicant, he ought to have been told that this opened up the possibility that he might be an accomplice to the crime of deception under the Criminal Code, s252A and been given a further formal warning. Had that been so, it is said, he might not have made any further answer or might at least have been more guarded in his answers. Reliance was placed on this passage from Szach v R (1980) 2 A Crim R 321 (per King CJ at 341):

"While the police are merely seeking information, fairness involves no more than that the questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires and that his answers be faithfully reported.  When the prime suspect is being interrogated with a view to charging him, the emphasis changes.  The decision which he must make as to whether to exercise his right to silence becomes a crucial consideration.  It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position.  Fairness to the suspect, in those circumstances, requires that he be made aware of the nature of the crime concerning which he is to be interrogated.  These considerations led White J to exclude confessions in Fieldhouse (1977) 17 SASR 92 and Hart (1977) 17 SASR 100. I think that fairness may often require that the suspect be told the nature of the crime under investigation at an earlier stage than that at which the investigating officer is required to give the caution."

In the case of Szach, who was convicted of murdering his homosexual lover, the prisoner had hidden the deceased's body in a freezer in the latter's home and then taken the deceased's car from Adelaide to Coober Pedy, arriving the morning after death had occurred.  He had gone to the local police station later that day about certain charges against him relating to cheques and when introduced to the investigating officer, had said he wished to speak to him about the cheques and about his friend with whom he said he had a homosexual relationship and who was missing.  Shortly after this, the detective received a telephone call from Adelaide advising that a body, presumed to be that of the deceased, had been found in circumstances suggesting that he had been murdered.  The detective, on instructions, did not reveal this fact to the prisoner but told him he had reasonable cause to suspect that the car was stolen and that he was going to ask questions about it.  He then cautioned the prisoner about his possession of the car and arrested him for illegal use of it.  The answers about his movements and possession of the car and other items belonging to the deceased were part of the circumstantial case upon which the prosecution relied.  The South Australian Court of Criminal Appeal rejected the contention that the use of the prisoner's statement against him was unfair.  In the cases of Fieldhouse and Hart referred to in the citation from King CJ's judgment above, the facts were, respectively, that the accused, who was charged with murder, having shot and wounded his brother, was arrested and questioned by police as to the circumstances without being made aware of the fact which was known to the police that his brother had already died; while in the latter case, the female accused was questioned by police about an assault and rape by three male companions on a young girl, was not informed of the possibility that she might herself be charged with the crime of rape.  In both cases, White AJ excluded what he described as unguarded answers tending to implicate the two accused who were misled in the circumstances.  In R v Fieldhouse (supra) at 98, White AJ said:

"The unfairness lies in extracting unguarded answers (whether intentionally or unintentionally) from a person whose attention has been deflected from the serious nature of the charge by things said or done by the police earlier."

In R v Hart & Ors (supra) the female confessionalist was misled, in part at least, by "the unique nature of the charge" (at 119).

1. In the present case, I see no reason to suppose that the applicant was in any way misled by anything said or done by the police or by Detective Roberts' failure to reveal the possibility that the applicant's answers might expose him to prosecution for an offence different from the one being initially investigated, nor to repeat the customary warning when the answers began to suggest that possibility.  Even then, when he was asked why he had authorised the payment when Mr Wolf was not entitled to it, the question was framed "So what explanation, if any, bearing in mind you don't have to give one, why have you authorised that when he wasn't entitled to it?"

1. Fairness, no doubt, does on occasion require that the interviewee be told the precise nature of the charge being investigated so that he is alerted to the need to exercise "the care in considering and formulating his answers appropriate to the seriousness of his position", as King CJ said in the passage quoted from Szach (supra); but in the circumstances of this case where the arguably more serious crime of making a false declaration was being investigated and the applicant's answers after a warning from the interviewing police officer and advice from his solicitor began to suggest the possibility of complicity in what is commonly known as a "travel rort", the failure to alert him to that possibility or to repeat a caution any earlier than Detective Roberts in effect did, could not, in my view, require the learned magistrate to exclude the evidence on the basis that it would be unfair to use the statement against the applicant on his trial.  The decision whether or not to exclude such material on that basis is a discretionary one to be exercised judicially and in accordance with established principles.  It has not been shown that the learned magistrate misdirected himself in any way, nor is it apparent from the material before him that exclusion was the appropriate course.  In the absence of any claim by the applicant that had he been alerted to the possibility of another charge being demonstrated, or that had he had a further warning he might not have made the statements he did and in the absence of any other indication of that eventuality, it cannot be assumed that such would have been the case.  It cannot be said, as Mason CJ said in Van der Meer & Others v R (1988) 82 ALR 10 at 20:

"… the police conduct of the interrogation was such as to make it unfair to use the later statements made by Ayliffe and those made by Storhannus against them.  Had the police observed the principles governing the interrogation of suspects, it might well have transpired that the statements would not have been made or not have been made in the form in which they were made."

1. The record of interview having been properly admitted, there was ample evidence from which the learned magistrate was satisfied of the guilt of the applicant.  Notwithstanding that the claim form submitted by Mr Wolf and signed by the applicant was partly obscured so that no date was apparent, the applicant's admissions to police that it related to the TIC directors' conference from which they had both returned on 21 April 1997 clearly identified it as the means by which the deception was practised by Mr Wolf and aided by the applicant.  The appeal is dismissed.