Police v Barchard
[2004] QDC 131
•7 May 2004
DISTRICT COURT OF QUEENSLAND
CITATION: Police v Barchard [2004] QDC 131
PARTIES: COMMISSIONER OF POLICE
Complainant/Respondent
and
PETER LEONARD BARCHARD
Defendant/Appellant
FILE NO: Appeal No: 189/2003 PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court Southport
DELIVERED ON: 7 May 2004 DELIVERED AT: Southport HEARING DATE: 29 March 2004 JUDGE: Newton DCJ ORDER: Appeal dismissed CATCHWORDS: APPEAL FROM MAGISTRATE – CRIMINAL LAW – EVIDENCE – ADMISSIBILITY – CONFESSIONS AND ADMISSIONS – whether written admission inadmissible as having been obtained improperly – whether other statements made by appellant in interview with staff supervisors should be excluded as having been made involuntarily – whether admissions made in the course of interview with police officer should be excluded – where appellant was asked further questions following telephone conversation with his solicitor – where conversation between appellant and his solicitor was overheard by police officer – where taped interview was not properly terminated – where interview was interrupted by incoming telephone call and interview was not suspended – where appellant was asked hypothetical questions by police officer
Police Powers and Responsibilities Act 2000
Cases cited:
R v Lee (1950) 82 CLR
COUNSEL: Mr C Rosser – Appellant
Mr S Johnson - Respondent
SOLICITORS: Ramsdens – Appellant
Director of Public Prosecutions – Respondent
This is an appeal against a decision of a Magistrate at Southport whereby the appellant was found guilty of a breach of s 408C(1)(a)(i) of the Criminal Code in that “On dates unknown between 15 July 1998 and 16 July 2002 he dishonestly applied the property of another, namely money, that was the property of B I Gaming Corporation”. It was further alleged by way of a circumstance of aggravation that the appellant was an employee of the respondent.
The facts of the matter may be shortly stated. The appellant had been employed at Conrad Jupiters Casino as a valet/doorman for some six years. His job included the greeting of casino and hotel guests and the arranging of parking for their cars. Money would be collected from some patrons for parking. Some patrons had been granted a Gold Card status allowing them to park their vehicles without the payment of a fee. Others such as house guests would have parking fees attached to their room accounts. The appellant had a discretion to offer complimentary parking to patrons. On some occasions patrons would reward the appellant by way of a tip.
The procedure adopted by employees performing the duties of valet/doorman required, upon receipt of money from a patron, that an entry be made on a valet parking ticket which would then be placed in a container together with the money for accounting at a later time.
The appellant’s employer became concerned as to the handling of monies taken for parking by valet/doorman employees and a covert video surveillance operation was mounted. Subsequently the appellant was interviewed by Mr Martin, Corporate Investigator; Mr Morris, Director of Safety and Security; and Mr Kokin, Security Controller Operator. That interview was not recorded. During the interview the appellant wrote and signed a statement in the following terms:
“I have admitted today misappropriating $20-$30 per month from Conrad Jupiters Ltd in my role as Doorman/Concierge.”
Subsequently the appellant was interviewed by Senior Constable Aubort in a room provided for police at the casino. That interview was recorded on a small tape-recorder, the only persons being present were the appellant and Detective Aubort. During the interview the following questions and answers appear:
“Well, let’s put it this way, Peter, the money that you received on each occasion, did you receive that honestly, or dishonestly?-- Well, looks like I’ve received it dishonestly.
Who owned that money?-- Conrad.
Conrad Jupiters. Who do [sic] work for?-- Conrad Jupiters.
So, your employer owns that money, and because of your job that money was paid to you, it’s part of your job to receive those monies; is that right?-- Yeah.
And your employer, in the ordinary course of things, and you’re being paid for valet parking, what does your employer require you to do with that money?-- Just to pay it in.
Pay it in? How do you pay it in?-- As a cash-----
As a cash payment for valet parking?-- Yeah.
How do you record that?-- Well, that would have been marked as a cash-----
Mmm?-- And then that would have been put in the cash bag, the $5.00.
Cash bag, and is it written up somewhere?-- Yeah, it’s written on the sheet.
You’ve got a running – running sheet for every day, actually records each and every transaction-----?-- Yes.
Cash transaction?-- Yes.
Well, probably every transaction?-- Mmm.
The interview continued thereafter with the appellant answering all questions put to him by Aubort.
In his reasons the Magistrate said that he was satisfied that the written admission made by the appellant was not the result of overbearing conduct by the investigators and was not obtained by unfair conduct. In relation to the interview between Aubort and the appellant, the Magistrate noted that the appellant continued to answer questions put to him after he had spoken with his solicitor and that he was of the view that the statements of the appellant had not been obtained by unfair tactics.
Counsel for the appellant complains that the written admission resulted from overbearing and unfair conduct on the part of the investigators. It is further contended that Aubort should not have continued to question the appellant following the conversation between the appellant and his solicitor. Further complaint is made in respect of the Aubort interview in four respects:
(a)the conversation between the appellant and his solicitor was overheard by Aubort;
(b)the taped interview was not properly terminated;
(c)the interview was interrupted by an incoming telephone call and there was no suspension of the interview; and
(d)it was unfair to the appellant to be asked hypothetical questions.
The Police Powers and Responsibilities Act 2000 enacts in Part 3 a number of safeguards to ensure the rights of and fairness to a person questioned in respect of an indictable offence. S 249 provides that before a police officer starts to question a relevant person for an indictable offence, the officer must inform the person of his right (inter alia) to telephone a lawyer of the person’s choice and arrange for the lawyer to be present during the questioning. Questioning must be delayed for a reasonable time to allow the lawyer to arrive.
[10] S 250 provides that if the relevant person asks to speak to a lawyer, the investigating police officer must provide reasonable facilities to enable the person to speak to the lawyer, and, if reasonably practicable, to do so in circumstances in which the conversation can not be overheard.
[11] It is quite clear on the material before me that the investigating police officer (Aubort) complied with the requirements of the Act in relation to advising the appellant of his rights to speak to a lawyer and to have that person present during questioning. Appropriate facilities were provided (in the form of a telephone) to enable the appellant to speak to his lawyer. It does not appear from the transcript of the conversation between the appellant and Aubort that any arrangement was made by the appellant to have his lawyer attend the interview. It is the case that prior to speaking with his lawyer, the appellant told Aubort he wanted the lawyer present if he was available. However, no indication was made after that conversation that the appellant desired his lawyer to attend the interview. Indeed, notwithstanding any legal advice given to him during the conversation, the appellant proceeded to make admissions and to indicate that he wanted the interview to proceed.
[12] The transcript of the interview at page 6 unequivocally records the appellant as saying that he wants to continue with the interview despite the advice given him by his lawyer not to continue answering questions. In these circumstances the Magistrate was entitled to conclude that there was no breach of any provision in s 249 or s 250 of the Act with respect to the attendance of the appellant’s lawyer.
[13] Because of the configuration of the office facilities and the absence of any other police officers to assist in the interview process, Aubort acted properly in taking the tape recorder outside the office and leaving the room during the appellant’s conversation with his lawyer, even though he could overhear the appellant speaking on the telephone. In the circumstances, it was not reasonably practicable to arrange for the conversation between the appellant and his lawyer to occur so that it could not be overheard.
[14] The respondent concedes that the taped interview was not terminated in the usual fashion. It seems clear that Aubort was in the process of asking the standard concluding questions as to the truthfulness of the answers and the voluntariness of the appellant’s participation when the tape expired. The conversation was being recorded on a compact tape recorder which did not have a warning device to signal the impending end of the tape. S 263 of the Act requires the questioning of a suspect, if practicable, to be electronically recorded. This applies to the whole of the questioning, not merely to a portion of it. Non-compliance with this provision will not, however, automatically result in the record being excluded. It will be admitted if the court is satisfied, in the special circumstances of the case, that its admission would be in the interests of justice (s 266(2)). The premature ending of the tape would not, in my view, in the circumstances of this case, render the record of the interview as being inadmissible or as having been obtained unfairly.
[15] The taking by Aubort of an incoming telephone call during the interview does not, in my view, affect the admissibility of the record. In this regard it should be remembered that Aubort was the only police officer present at the time. I am unable to see how his taking the call could have resulted in any unfairness to the appellant.
[16] The objection to the asking of a hypothetical question by the investigating police officer during the interview is without substance. The question and answer were as follows:
“Let’s put it this way, ordinary Joe Bloggs off the street, if he was objectively to look at this whole scenario, do you think ordinary Joe Bloggs would consider this activity honest or dishonest?-- No, you’re right, it’s dishonest.”
[17] The successful prosecution of the alleged offence would require proof that both subjective as well as objective dishonesty occurred. The question was relevant, unambiguous and appropriate. No unfairness to the appellant resulted from the nature of the question, and there was nothing improper in the way the question was phrased. This ground, also, must fail.
[18] With respect to the initial interview with the three employees, the appellant contends that statements made by him during that interview should have been excluded because they were not made voluntarily. However, it is clear that the appellant chose not to answer a number of questions put to him during the interview, and there is nothing to indicate that his responses to those questions he chose to answer were not made voluntarily. No threat or promise was made by any of those present at the interview and there was no duress, intimidation, persistent importunity or sustained insistence or pressure by the employees which would render the answers inadmissible as being made involuntarily. See R v Lee (1950) 82 CLR at 144. The Magistrate, in my view, was entitled to find, as he did, that the statements of the appellant made to the employees were voluntarily made and, accordingly, admissible in evidence.
[19] The appeal must, for these reasons, be dismissed.
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