Police v Bolton

[2010] QMC 4

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Bolton [2010] QMC 4

PARTIES:

POLICE

(prosecution)

v

GARY BOLTON

(defendant)

FILE NO/S:

MAG159327/09(4)

DIVISION:

Magistrates Court

PROCEEDING:

Application to exclude confession

ORIGINATING COURT:

Magistrates Court at Innisfail

DELIVERED ON:

25 June 2010

DELIVERED AT:

Innisfail

HEARING DATE:

9 April 2010, 12 June 2010

MAGISTRATE:

Brassington JM

ORDER:

The evidence of the interview of the Defendant on 20 July 2009   is not admissible against the Defendant.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – VOIR DIRE - INDUCEMENT

Criminal Law Amendment Act 1892, s 10

COUNSEL:

Mobbs appeared for the defendant

SOLICITORS:

INTRODUCTION

1. On 12 July 2009 there was a break and enter at the Moresby General Store Post Office with a large quantity of coins been taken from the premises.  Sergeant David Tucker from the Innisfail Criminal Investigation Branch (“the CIB”) investigated the event.  Later in the same week those coins were found by Ken Vitale in bushland behind and parallel to Inarlinga Road Cowley Beach.  That location was a substantial distance from Moresby.

1. Mr Vitale was spoken to by police.  He was, briefly, a suspect because he was related to the owners of the Moresby Store.  No charges were bought against Mr. Vitale.

1. On 20 July 2009 Sergeant Tucker (Tucker) and Detective Senior Constable Wilkinson (Wilkinson) assisted in the execution of a search warrant at the house of Gary Bolton (the Defendant).    Later on that day the Defendant confessed to participating in the Moresby General Store Post Office break in and that confession was visually recorded.

1. The hearing of the charge commenced on 9 April 2010.   Mr Mobbs, for the Defendant, sought the following orders:

   1.I exclude the confession because it is not a voluntary confession;

   or, if I find the confession is voluntary

   2.I exclude the confession in the exercise of my discretion to exclude the confession as it would be unfair to the Defendant for me to admit the confession.

1. A voir dire was held by me on 9 April 2010 and 12 June 2010 to determine these issues.  These are the reasons for my decision.  Before turning to the resolution of the factual issues I will briefly discuss the relevant law that should be applied in the resolution of the relevant issues.

LEGAL PRINCIPLES

1. Section 10 of the Criminal Law Amendment Act 1892 is a statutory statement of the strict common law principle that in criminal proceedings no confession is admissible against its maker unless the confession is proved to be voluntary.  Section 10 provides:

   “ No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary can be shown.”

2. Thus the onus rests on the prosecution to prove, on the balance of probabilities that the confession was made in the exercise of a free choice to speak…