Police v Bolton
[2010] QMC 4
•25 June 2010
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
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.
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.
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.
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.
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
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.”
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 or remain silent.
Note should be made also of s 416 of the Police Powers and Responsibilities Act 2000 that provides the statement that a police officer who is questioning a relevant person must not obtain a confession by threat or promise. It has being said this section really adds nothing further to the requirements in s 10 of the Criminal Law Amendment Act 1892.[1]
[1]R v Small (No.2) [2009] QDC 320 per Judge Irwin at paragraph 25
The Defendant also relies upon s 130 of the Evidence Act 1977 to support the exclusion of all confessions upon the basis that their reception in evidence would be unfair to the Defendant. Mr. Mobb’s argument is essentially the failure of the investigating police to comply with the legal requirements set out in the Police Powers and Responsibilities Act 2000 and the Police Responsibilities Code (schedule 10 to the Police Powers and Responsibilities Regulation 2000) relating to the questioning of a suspect for indictable offences means it would be unfair to use the defendant’s statements against him because it may jeopardise his right to a fair trial.
Where illegality or impropriety by police is claimed the approach to the discretion to exclude upon the basis of unfairness is set out by Keane JA in R v LR [2005] QCA 368 at paragraph 51:
The circumstance that the record of interview was obtained in contravention of the PPR Act does not of itself mean that it should have been excluded by the learned trial judge. Illegality or impropriety on the part of law enforcement officers that results in the making of a confession merely enlivens a discretion to exclude the confession on the grounds of unfairness. The provisions of the PPR Act to which I have referred do not purport expressly to govern the admissibility of evidence, but the authorities suggest that they are to be "regarded as a yardstick against which issues of unfairness (and impropriety) may be measured".
The decision of the High Court in The Queen v Swaffield, and in particular the joint judgment of Toohey, Gaudron and Gummow JJ, requires that the discretion to exclude confessional evidence should be exercised, where voluntariness is not in issue, by reference to considerations of reliability and respect for the right of an accused to stay silent. As their Honours said:
"… the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence."
The Defendant further relies upon the discretion to exclude unlawfully obtained evidence on public policy grounds.
How the public policy discretion is to be exercised and the relevant considerations are conveniently (and cogently) summarised by Judge Irwin in R v Small (No. 2) [2009] QDC 320:
In relation to exclusion on the grounds of public policy, Mr Byrne referred me to Bunning v Cross where with references to Reg. v Ireland, their Honours said:
“What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy; thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task is to enforce the law. This being the aim of the discretionary process called for by Ireland, it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor, while if present, will play its part in the whole process of consideration.”
In concluding that the balance of considerations in that case came down to the admission of the evidence, their Honours said:
“The first material fact in the present case, once the unlawfulness … is noted, is that there is here no suggestion that the unlawfulness was other than the result of a mistaken belief on the part of police officers … entitled them to do what they did. … Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it.
The second matter to be noted is that the nature of the illegality does not in this case affect the cogency of the evidence so obtained … cogency should generally be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentionally reckless.
…
Where, as here, the illegality arises only from mistake and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had. It bears on one of the competing policy considerations, the desirability of bringing wrongdoers to conviction. If other equally cogent evidence, untainted by illegality, is available to the prosecution at the trial the case for the admission of the evidence illegally obtained will be the weaker.
…
A third consideration may in some cases arise, namely the ease with which the law might have been complied with in procuring the evidence in question.…
A fourth and important factor is the nature of the offence charged.
…
Some examination of the comparative seriousness of the offence and the unlawful conduct of the law enforcement’s authority is an element of the process required by Ireland’s case.
Finally, it is no doubt a consideration that an examination of the legislation suggests that there was a quite deliberate intent on the part of the legislature to narrowly restrict the police in their power. … This last factor is, of course, one favouring rejection of the evidence.” (my emphasis)
The onus with respect to the public policy and fairness discretions is upon the Defendant to satisfy me to the balance of probabilities that I should exclude the subject admissions.
THE BASIS FOR EXCLUSION
Mr. Mobbs submits that the basis of his application to exclude the confession as involuntary is the Defendant’s evidence that he was threatened and/or induced to make the confession. The threats were allegedly made by Sergeant Tucker in a police vehicle and they were:
1.if he did not confess to this one offence he would be charged with 40 other unsolved Innisfail burglaries; and
2.as he was on parole he would then have to sit in jail until he could prove himself innocent;
3.his cousin Cristaldi, whom he had falsely implicated, was in the watch house and was very upset – the implication being that if he was denied bail and put in the watch house Cristaldi may hurt him
The inducement, allegedly made at the police station before the interview, was that if he confessed he would be entitled to go home.
The Prosecutor submits that the Defendant’s evidence of threats and inducements is simply a fabrication by him to escape the consequences of his candour.
Mr. Mobbs submits the basis of his application to exclude the confession as unfair is a deliberate non-compliance with the Police Powers and Responsibilities Code including a failure to caution the Defendant before questioning knowing that the Defendant was a particularly vulnerable person given his parole status.
Further Mr. Mobbs submits that recognising the deliberate nature of the multiple breaches of the Police Powers and Responsibilities Code I should exclude all confessions on public policy grounds in that to admit the evidence would give curial encouragement to deliberately unlawful police conduct.
With respect to these matters the Prosecutor essentially submits there was no breaches of the Police Powers and Responsibilities Code and even if I find minor non-compliance the breaches were so minor and non-deliberate that they would not justify exclusion of a reliable, voluntary confession.
Obviously, the determination of most of these issues requires the determination of whose evidence I accept as truthful and reliable. I then turn to a consideration of the evidence and my findings of fact.
THE EVIDENCE
I have set out the versions of the three witnesses in the voir dire in chronological order grouped around each of the four relevant events:
(a)The car journey to investigate the origin of certain property found at the Defendant’s house following the execution of a search warrant relating to illicit drugs
(b)The car journey to the Innisfail Police Station
(c)The events prior to the interview
(d)The interview
(a)The car journey to investigate the origin of certain property found at the Defendant’s house following the execution of a search warrant relating to illicit drugs
Tucker and Wilkinson assisted in the execution of a search warrant on the Defendant’s house on Thursday 20 July 2009. While at the residence Tucker observed certain property that he considered suspect. It was admitted by the prosecution that on the search warrant tape recording (not tendered in evidence by either party) that Tucker said to the Defendant (with reference to a laser leveller) “Mate, that's knocked off" - "is it knocked off from where you work”. Tucker said that the Defendant denied this and offered to go with them in their police car to the place at Japoonvale (some distance from Cowley Beach) where he bought the level. In cross examination he conceded that he said to the Defendant “so you'll be able to show us where you got it from" and then the Defendant volunteered to show them where he got it from.
Wilkinson was present for the conversation and he testified to similar conversation:
I can't recall what was said in real time, however, I have heard a recording of the execution of the search warrant, and I recall from that recording Detective Sergeant Tucker said to the defendant, "We've located a couple of items of property. We'd like to know more about" - "about them", that sort of thing, and, "We'd like to know if you" - "if we" - "could give us some more information about where we came about those items."[2]
[2]Transcript p. 31
Tucker then testified what occurred in the car:
I've then had a conversation with Mr Bolton in relation to the break and enter to establish if he had any knowledge of it given that the property had been located in bushland also - which is located behind his house as well. I asked Mr Bolton if he knew Mr Vitale. He said that he didn't. I said words to the effect, "Well, you know, he's been around here for years, all his life" and I think he said - well, words to the effect that he may know who he is. I then asked him if he knew anything about the break and enter at Moresby General Store. He said that he didn't. I've said something like, "Well, we found some property in the bushland which consisted of some money in a bucket" and asked him - I think I asked him, you know, if he knew anything about it and might be able to help us out. Mr Bolton has then said actually he - he may know something about it. He's then proceeded to tell us how he's cousin John Kristoldi, I think it's John Kristoldi, and another person by the name of Gorry had attended his house I think it was the Monday night after the break and enter, and at that at that time they were in possession of coins, a large amount of coins. He's told the story how they had parked out the back of his house which is adjacent to the bushland and they had a boot full of coins and they asked Mr Bolton for a bucket, and at which time Mr Bolton provided them with a bucket from - from his house. Now, I've gone over myself and plain clothes Senior Constable Wilkinson has gone over that story several times with Mr Bolton to make - you know, to get all the details and that was as we proceeded out to Japoonvale.
This initial conversation was not recorded[3] and there was no caution administered. Tucker testified this was because his conversation with the Defendant about the break in was essentially an ‘off the cuff’ remark [4] and that there was no connection between the questioning and the journey in the car. He further testified that the whole time in the car with the Defendant he regarded him as a ‘witness’ and was pleased to receive information about the break in. Tucker stated in cross-examination that he was aware the Defendant had some history but not that it entailed several break and enters.
[3]It was conceded there was a recorder on a charger in the car – see p. 18 of the transcript
[4]Transcript p. 8
Wilkinson, in cross examination, stated that he was aware the Defendant was on parole for burglary and that the Defendant had prior convictions for burglary as he had previous dealings with him. He further testified that the Defendant was not a suspect for the Moresby burglary when the search warrant was executed but he was a “person of interest” because of his criminal record and proximity of where the stolen coins were found to his house.
Wilkinson confirmed no caution was given before questioning but he supported Tucker’s evidence that during the journey to Japoonvale the Defendant’s revelations did not cause them to suspect him but rather they regarded him as a potential witness.
In cross-examination Tucker was asked whether the Defendant was a “relevant person” (with respect to the suspicion of stealing the leveller) when he undertook the journey with he and Wilkinson:[5]
Did you suspect that he was a relevant person according to the Police Powers and Responsibilities Act for stealing that property? No. He - he provided at that time that he got it legitimately and we were following up on that particular - well, that particular piece of property.
So he wasn't a relevant person? Well, we - well, I - I - under the Act I suppose you could say if you - under the letter of the Act I was suspicious of the property and that's obviously why we did what we did.
[5]Transcript p. 15
With respect to whether a warning was given as required by s 33 of the Police Powers and Responsibilities Code[6] Tucker testified initially that he substantially complied with this provision and then[7] that he could not recall without listening to the recording. As noted the recording was not in evidence nor sought to be placed in evidence (but clearly available and listened to by both parties). Given no attempt was made to put the recording in evidence in re-examination I draw the inference there was no s 33 warning on the tape.
[6]Section 33 relevant provides:
(1)This section applies if a police officer wants to question a person as a suspect, other than a person mentioned in the Act, section 398.
(2) If the police officer approaches the person when not at a police station or police establishment, the police officer must caution the person in a way substantially complying with the following—
‘I am (name and rank) of (name of police station or police establishment).
I wish to question you about (briefly describe offence).
Are you prepared to come with me to (place of questioning)?
Do you understand that you are not under arrest and you do not have to come with me?’
[7]Page 17 of the Transcript
Following the trip to Japoonvale to verify ownership of the leveller (which was apparently done) the Defendant was driven home. Tucker and Wilkinson went to investigate the information from the Defendant.
The Defendant’s account of the initial contact with Tucker and Wilkinson was that they, with other Police, arrived to execute a search warrant for illicit drugs and during this search they found a laser level and accused him of stealing it from his employer. He said he thought this accuser was Detective Tucker and he was told that if he did not prove where he got it from he might be charged for possession of tainted property. At this time he was asked about a generator as well and asked if he would show them where they got it from. He said he asked did he have to and was told that if did not prove they were not tainted property then he would be charged. This concerned him as he was on parole at the time. He denied he was cautioned.
The Defendant then testified he was asked about the Moresby break-in and whether his DNA would be found on the bucket. He did not testify about what he told police with respect to the involvement of Cristaldi and Gorry. Nor did he say why he volunteered this information. In cross-examination he denied that he initially told police of the bucket as he was afraid fingerprints would be found on the bucket and said he told them the information to help.
(b) The car journey to the Innisfail Police Station
Following the investigation of the Defendant’s story Tucker and Wilkinson were convinced that Cristaldi and Gorry were not involved in the break in and they returned to Cowley Beach to arrest the Defendant. Tucker described this initial journey as follows:
Wilkinson have gone back out to Mr Bolton's house at Inarlinga Road and he's been arrested and placed in the police vehicle. Now, Mr Bolton's - as we've started to proceed back to the police station Mr Bolton has complained several times about him being arrested for something that he hadn't done. He's then said to us that his mother can corroborate the story that he'd provided police and he's urged us to make inquiries with his mother before we went any further.
The conversation was not recorded and the Defendant was not cautioned.
The Defendant’s account of the journey is that during this journey serious threats were made to him. He testified that Wilkinson and Tucker came in to his house and told him to get his clothes as not coming home and that what he had told them that morning was “a load of bull shit”. He was not cautioned and during the car trip Tucker said to him he have been in and out of jail a lot of times and surely he had learned his lesson. He had replied that he had only been to jail for seven days. Wilkinson had then said that he was correct.
Tucker then threatened him that if he did not admit to this one offence he was going to “throw six months worth of break and enters” – forty – at him and showed him a sheet of paper with a photo of a mobile phone. This was understood by the Defendant that he would be charged with multiple break and enters over six months. Further Tucker told him his cousin Cristaldi was in the watch house and wanted to kill him. Finally, Tucker told him he was scum and said that if he would have his way he would be thrown in the water.
Wilkinson’s account supported that of Tucker when he said the Defendant was angry about been detained as he protested he helped them and volunteered his mother as an alibi. Tucker and Wilkinson strenuously deny threatening the Defendant.
(c) The events prior to the interview
Tucker testified that on return to the station he and Wilkinson placed the Defendant in the interview room and then went to make inquiries with his mother with respect to the purported alibi. On returning to the station he saw the Defendant in the interview room and said:[8]
We've spoken to her and it's - this is where the detail - well, we've had a detailed - detailed" - sorry, "Had a detailed conversation with her" or "We've obtained details from her," something like that and basically it's all in the detail and this is where your story has unravelled. Now, with that Mr Bolton has burst into tears. He's then said something like, "I'm going to gaol. I don't want to go to gaol." I said, "Why would you be going to gaol?" He said, "If I get done - done with this, I'll be going back to gaol."
[8]Page 8 of the Transcript
The Defendant was not warned prior to this conversation. The conversation was not recorded.
Tucker further testified
I've asked if he wanted to go ahead with a record of interview, he's still crying, saying that he didn't want to go to gaol, and will he - will he be going to gaol, and he - he - I think he asked - he spoke about his kids, he wanted to go home and see his children. I've said, "Gary" - oh, words to the effect, "Gary, I" - "all I need to know at this time is if you want to go" - "if you want to participate in a record of interview." As I don't know what he was going to tell us, I couldn't make any sort of comment on what might happen at the conclusion of a record of interview. I went on to tell him that what - anything that can - could happen cannot - I cannot influence him in any way, shape or form of whether he does an interview, or he doesn't want to do an interview. I've made it quite clear to him that if he wants to go ahead with an interview he's got to do that of his own free will, and - and that decision can only be made by him. I couldn't make the decision for him. And basically, whatever happens after the interview we've got to address that at the end - at the conclusion of that interview. He's then agreed to take part in a record of interview.
Mmm. And how did he agree to participate; do you recall? I think I just asked him again, "Well, look, do you" - "do you want to do an interview?", and - and he's - he's - he was still sobbing, and then I think I - I - I went and got some tissues or towel - hand towel for him, and I said, "Look, I'll give you a couple of minutes to get yourself composed again, and then we'll come in and do the interview."
Tucker also testified that there was some conversation with respect to the issue of bail:
You know, I made it very clear that he had to do an interview of your own free choice. What I did say was - he asked about going home, and I said, "Well, it's only a break and enter, and I can't see any reason to keep you in custody; however, that's got nothing to do with whether you take part in an interview or not." Absolutely nothing to do with that, I made that point very clear. There was a clear division about whether he'd go home, because realistically, you know, to be charged one break and enter is really not an offence where you'd do an objection to bail; however, that had nothing to do with whether he took part in an interview or not, and I made that quite clear to him at the time.
Wilkinson’s evidence supported Tucker’s evidence that he went into the interview room and then informed him he was going to participate in the interview. Wilkinson testified he then went into the interview room and essentially confirmed he was going to do an interview and then commenced the interview.
The Defendant’s account of the preliminaries of the interview is that Tucker came in and told him that if he stopped “stuffing him around and pleaded guilty” he could go home. He also told him his mother said what he had said was not true and that he knew more then what you are saying. Wilkinson also told him, after Tucker left, that the quicker he gave an interview the quicker he could go home. The Defendant said prior to interview he was sick from drugs and suffering pain from a hydroclele and had haemorrhoids.
In short the Defendant’s testimony was that he would say anything to go home and he only participated in the interview as he was promised he could go home. He also asserted, in cross examination, that he had no choice about participating in the interview as it was put to him that he would be charged with 40 other offences if he did not participate and this was enough to breach parole.
(d) The interview
The interview is exhibit 1 in the voir dire. At the outset of the interview the Defendant appears very upset and is visibly wiping tears away. He says he has been in the interview room for approximately two hours which would accord with the time he was apprehended at his house been 2.23pm. He cries as the warning is administered but agrees to answer questions and cries when naming his children. He agrees to answer questions and is offered the right to telephone a lawyer. He says no.
With the warning Wilkinson adds that “obviously there has been prior conversation” and there has been a “little chat here”.
During the interview the Defendant becomes increasingly uncomfortable and he displays all the indicia of someone in considerable pain. At times he stands.
The account he gives to police implicates his cousin Johnny Cristaldi as a co-offender. He says he and his cousin went to Moresby just on dark. He was on the side of the building when Johnny pulled out two or three windows to gain entry and then came out of the building with a big bucket of change. They put that in the boot of the car and then they drove back to Cowley Beach. As a lot of change had tipped out into the boot he then went and got another bucket and put coins in it. He and Cristaldi then hid the coins and the blue bucket in the bush behind his home. He asserts his cousin, who he met at the IGA in Innisfail, needed money and suggested the shop at Moresby as he knew no-one was there. He admits his role was as a look out to watch for people and he was well aware that Cristaldi was doing a break in. He said Cristaldi took coins but he took nothing. The Defendant draws a map for police as to where the coins are held.
At about 17:15 (interview clock) the Defendant looked to be in considerable pain. The Defendant then asks to speak to a psychiatrist and is told by Wilkinson “sure we can help out with one of those”.
He is briefly questioned about two other break and enters at El Arish Post Office and Mission Beach. He denies all involvement in these matters. Prior to questioning Wilkinson says “we briefly discussed the Mission Beach break in earlier”. Tucker intervenes to draw the interview to a close clearly reacting to the Defendant’s deteriorating physical condition. The Defendant is asked if he was threatened to take part in the interview. He says no. He is then asked if he was promised anything to take part in the interview. He answers “That I would be definitely going home this afternoon.
The interview then ends fairly abruptly with no other questions with respect to these matters. The Defendant was given a notice to appear in Court to answer the charge and released.
FINDINGS
A preliminary point
The confession of the Defendant is said to be wrong in a material particular in that he did not assist Johnny Cristaldi. Investigating police are satisfied Cristaldi was wrongly implicated by the Defendant.
That raises the issue as to whether s 10 of the Criminal Law Amendment Act is even applicable to determining the admissibility of the admissions. I am satisfied that the Defendant’s confession is a mixture of inculpatory statements (for example, that he assisted in the break-in knowing there was to be a break-in) and other statements that might be thought to reduce somewhat his involvement (for example, he took no money, he was not the main instigator of the break-in). Given the authority of R v Q [2003] QCA 421, where Helman J said (at para. 21 - 23):
In my view the statements of the appellant relied on by the Crown were confessional, as I shall explain.
In R. v. Doyle, ex parte Attorney-General it was held that the word ‘confession’ in s 10 of the Criminal Law Amendment Act had the meaning ascribed to it at common law, i.e., a direct admission of guilt or of some fact or facts which may tend to prove an accused person’s guilt, but that an exculpatory statement not a confession as so defined is not protected by s 10: pp 742-746 per Shepherdson J. with whom, on this subject, Kelly S.P.J. and Matthews J. agreed. In R. v. Clark, ex parte Attorney-General the exculpatory-statement exception was discussed by de Jersey C.J. with whom Jones J. agreed, at paragraphs 20-24 and by McPherson J.A., with whom Jones J. also agreed, at paragraphs 42-44. In that case exculpatory statements made by the accused, who was charged with murder, when interviewed by police officers did not include any that would ordinarily be characterized as a confession or admission, but they were put before the jury as lies told from the consciousness of his responsibility for the death of the deceased. It was held that s 10 did not apply to the statements because they were not confessional.
In this case, however, the appellant’s statements were both confessional and exculpatory: confessional in that he admitted having been in the apartment at the relevant time and having removed the camera, and exculpatory in that he denied raping the complainant. The Crown relied upon the appellant’s confessional statements to establish an essential part of its case: the identity of the intruder. That evidence falls into the category referred to by Isaacs J. in Attorney-General for New South Wales v. Martin (1910) 9 C.L.R. 713 at p. 735: ‘an affirmative link in the chain of evidence, because it admits some fact which tends to prove the guilt of the prisoner’. There is an important distinction between evidence of lies relied on by the Crown as admissions by conduct, and evidence of an incriminatory admission accompanied by a self-serving exculpatory statement which, on the Crown case, is a lie. R. v. Clark, ex parte Attorney-General provides an example of the former, and this case of the latter. In order to be permitted to put the incriminatory admission before the jury in a case in the latter category the Crown must of course lead both incriminatory and exculpatory parts of the statement: see Mr Andrew West’s report in (1995) 15 Qld Lawyer 15-16 of a helpful summary of the rules concerning the reception of exculpatory statements by Howell D.C.J. in R. v. Kirkwood (unreported, 2 November 1993).
I am satisfied that some statements of the Defendant were confessional and attracted the protection of s 10 of the Criminal Law Amendment Act 1894.
Was the Interview Voluntary?
Having seen and heard the witnesses give evidence I am satisfied by the Prosecution that the Defendant was not threatened on the car journey from his home to the Innisfail Police Station in the manner he described. I make this finding for the following reasons:
1.I regret to say that I did not find the Defendant a particularly impressive witness and I found his testimony often imprecise and evasive as to what actually occurred and his motivations in volunteering certain information. His lack of explanation as to his reason for volunteering to police his cousin’s involvement in the break-in during his first conversation with police in the police car while travelling to Japoonvale is troubling as even on the Defendant’s evidence the police made no threats or promises when they asked him questions about the finding of coins outside his house. The submission of the prosecutor that the explanation was volunteered in panic to explain the possible presence of forensic evidence linking him to the bucket is very persuasive. It is the only rational explanation
2.It is difficult too understand that if the Defendant was threatened in the manner he set out in evidence (i.e to confess or he would have forty break and enters thrown at him) why the police would then spend two hours investigating the purported alibi that he volunteered to them. The behaviour of the investigating police is far more consistent with their being suspicious of the Defendant but prepared to check his account rather then determined to threaten him into a confession.
3.Tucker’s denial of the threats is corroborated by Wilkinson. Further, the Defendant denies he was threatened in the record of interview. This is significant given he volunteered at the conclusion of the interview that he had been promised that he was definitely going home that afternoon but made no mention of threats.
4.The confession is detailed and the Defendant is co-operative to the extent of drawing a map as to where the coins were hidden in the bush behind Inarlinga Road. His responses are not consistent with the explanation that he essentially recounted facts that he was told by police officers.
The next issue to determine is whether the Prosecution have satisfied me that the Defendant was not induced to confess by a promise that he would be released upon bail if he confessed. The determination of this issue presents some difficulty as the subject conversation was not recorded. Higher Courts have repeatedly made plain the dangers of police investigations proceeding in these matters. The Chief Justice in R v D [2000] QCA 203 said:
This Court has commented on previous occasions on the impropriety of police failing to record all conversations with suspects, whether in the police station or in a police vehicle or elsewhere. Suspicion will often fall on honest police officers if this is not done. More importantly, because of the risk of police fabrication of confessions and of inducement of confessions if that is not done, it may be that courts will need, in some cases in which part only of conversations between the accused and police is recorded, to warn the jury of the danger of convicting on the basis of that evidence alone, notwithstanding that that part appears to contain admissions against interest.
With respect to examples the Chief Justice cited R v Mostyn CA Nos 482 and 491 of 1995, 10 April 1996; R v Armstrong CA No 453 of 1996, 29 April 1997. Moystn also contains the clearest possible statement of the great benefits that routine recording of confessions created and the pitfalls of a failure to record earlier conversations (per McPherson JA):
The practice of electronically recording, and in most cases video-taping, police interviews with suspects who are later charged with offences on the strength, wholly or partly, of what has been recorded, has proved salutary. Reducing the opportunity and the occasion for making complaints, whether justified or ill-founded, that confessions have been fabricated or improperly obtained, has had beneficial effects in several different ways. It has tended to improve both the discipline and the morale of the police force. It has enhanced the process of administering justice in court not only by promoting greater confidence in verdicts, but also by avoiding or at least greatly diminishing the time-consuming operation of testing the validity of much confessional evidence tendered at trials. If some cause for concern remains, it is now largely confined to the fact that much time continues to be occupied at trial in replaying the whole of often very lengthy taped interviews, when only a few passages are relevant to matters in issue.
As frequently happens when an improvement is introduced, a corresponding effort to subvert or defeat it is soon devised. A method that may now be coming into vogue is for a dishonest suspect to claim that he was induced to participate in a recorded interview by some earlier and unrecorded promise or threat from police or other person in authority. The present case may be an instance of that kind. Judging by their criminal records in New South Wales, the applicants are not without experience of police procedures. Or it may be that this is an occasion on which some such threat or promise was in fact made. If so, the truth of the matter cannot readily be gauged from 3
the otherwise uncorroborated oral evidence of another conversation recorded, perhaps inaccurately, only in a police notebook some hours after the conversation took place. It threatens a reversion to the state of affairs that prevailed before recording of interviews was introduced, making it difficult to know where the truth really lies.
Another side effect of the failure to accurately record conversations is that even honest witnesses can be mistaken as to what occurred.
Having observed the Defendant on the video recording it is apparent he was in a highly emotional state. Clearly, that state preceded the interview because Tucker in his evidence noted that the Defendant was sobbing in the interview room when he went to ask him if he wanted to take part in a record of interview. The Defendant was vulnerable in other ways. He was on parole. He was aware that the likely consequence of been charged with a like offence while on parole was that his parole may be suspended and he would be committed into custody for at least 28 days. In those circumstances the attitude of police to bail might be reasonably thought by him to be critical to his liberty both with respect to bail and parole. The Defendant was, I accept, very scared of jail. He was also suffering physical ailments that caused him significant pain[9] and grappling with depression and suicidal thoughts. He was in a state of desperation. Such desperation was probably contributed to by his own knowledge that what he had already told police undoubtedly contributed to his present circumstances.
[9]The matters have been delayed longer then normal between hearing days to permit the Defendant to have an operation
Sergeant Tucker was an experienced police officer. He clearly recognised the Defendant’s agitation and upset and testified that he withdrew from the interview room to let him compose himself.
It was in that context that the Defendant had a conversation about giving an interview. His evidence, as recounted, was that Tucker came in and told him that if he stopped “stuffing him around and pleaded guilty” he could go home. He also told him his mother said what he had said was not true and that he knew more then what you are saying. Wilkinson also told him, after Tucker left, that the quicker he gave an interview the quicker he could go home. Later in cross-examination he maintains that he was promised he could go home if he did the interview.
Sergeant Tucker, as noted, denies such a promise was made but does concede there was discussion about bail when he was asking the Defendant whether he would participate in the interview. The relevant transcript is excerpted previously. He is adamant that it was made plain to the Defendant that this had no bearing on his choice whether or not he should do an interview.
I am satisfied that neither Sergeant Tucker or Senior Constable Wilkinson intentionally made a promise to the Defendant that he could go home after the interview. However, the onus is not on the Defendant to prove impropriety on the part of the police nor is it enough for the Prosecution to show that there was no intent to extract a confession. Rather the question is one of fact and causation i.e. whether the Crown has proved the admissions has not been made as a result of something said or done by a person in authority.[10]
[10]See Director of Public Prosecutions v Ping Lin [1975]3 All E R 175
Given the evidence of the video recording and the evidence of Sergeant Tucker I am satisfied that there was a conversation with the Defendant where there was reference, close in time, about whether the Defendant would take part in an interview and whether the Defendant would be released on bail. I am further satisfied that the Defendant was in a desperate state at this time for the reasons set out above. The evidence of Sergeant Tucker and Wilkinson I am satisfied was truthful but it was their recollection of what occurred. There was no recording. There were no notes. In the situation of assessing whether the words of Tucker induced the Defendant to take part in an interview the exact conversation, the state of the Defendant and the juxtaposition of the conversation with respect to the Defendant’s freedom to go home and the invitation for the interview are absolutely critical.
The Defendant’s case as to what he believed – and why he took part in the interview – is significantly strengthened by the concluding section of the record of interview where the following is recorded:
Has anyone promised you anything to take part in the interview? Only that I can go home
Ok and what was said there? Just that I can go home after this that’s all
So no one has promised you ..Gary? I was told I was definitely going home this afternoon
Alright has anyone offered you anything to take part in the interview though? No
Were you told of your right to remain silent at the start or during the interview? Yes
Have you answered the questions truthfully? Yes
I now terminate the interview.
It is of course not enough that the Defendant out of desperation decided to confess thinking it might help him get bail. There has to be a causative link between the police conduct and the promise. Here the case is admitted that there was some conversation about bail not been opposed and also conversation about taking part in an interview. The conversation was not recorded and critically the conversation was not clarified to any extent in the recorded interview. The Defendant, after clearing stating he was promised he could go home if he took part in the interview, is not further questioned about why this is his belief or what he means. The conversation with Sergeant Tucker is not put to him so he could comment on that version. Rather he is only further asked if he was offered anything. That further question certainly doesn’t clarify the earlier answer as promise and offer are two different concepts. The interview is then rather abruptly terminated.
Given the opportunity presented itself in the interview to clarify the prior, unrecorded, conversation it is concerning matters were left as they were. While as I have made clear I was not particularly impressed by the Defendant’s testimony as to threats made to him I do accept he was desperate to go home and avoid custody. He was in a particularly vulnerable state when he was questioned about taking part in the interview. It is certainly not inconceivable that he understood the promise to go home as conditional on taking part in the interview. Further his answer at the conclusion of the interview demonstrated that any prior recorded warning at not dissipated the consequences of the prior unrecorded conversation about bail upon his reasons for participation in the interview. This, I am satisfied, was not the intent of the investigating police. However, the state of the evidence is such that, in the absence of a recording of the conversation in the interview room, or at the very least a clarification of the Defendant’s assertion in the interview, the prosecution have not persuaded me that the Defendant’s confession was not induced by a promise that he could go home. Accordingly, I rule that the evidence of the interview of the Defendant on 20 July 2009 is not admissible against the Defendant because of the operation of s 10 of the Criminal Law Amendment Act 1894.
Unfairness and Public Policy Discretion
Given my findings with respect to the application of s 10 it is not necessary to consider the exercise of either of these discretions with respect to the admission of the recorded confession.
Should the prosecution seek to lead any of the preliminary conversations, either in the motor vehicle or in the watch house in proof of guilt I will hear any further submissions on those matters.
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