R v Anderson

[2010] QDC 3

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Anderson [2010] QDC 3
PARTIES:	R v RYAN RICHARD ANDERSON
FILE NO/S:	Indictment No. 1667 of 2009
DIVISION:	Criminal
PROCEEDING:	Application pursuant to s. 590AA of the Criminal Code of Queensland for an order that six records of interview between officers of the Queensland Police Service and the defendant be excluded
ORIGINATING
COURT:	District Court
DELIVERED ON:	29 January 2010
DELIVERED AT:	Brisbane
HEARING DATE:	26, 27, 28, 29, 30 October and 11 December 2009
JUDGE:	Andrews SC DCJ
ORDER:	Order that the records of interview contained in audio record exhibits 1, 2A, 2B, 3, 4, 5 and 6 shall not be received in evidence in any criminal proceeding against the defendant.
CATCHWORDS:	EVIDENCE – CRIMINAL TRIAL – ADMISSIBILITY – POLICE RECORDS OF INTERVIEW – whether records of interview were induced by threat or promise – where police officers allowed defendant phone calls to fiancée and visits with fiancée in the course of or following recording of confessions – where facts of defendant’s phone calls and visits were not recorded – where conversations between defendant and police relating to phone calls and visits not recorded – whether Crown discharged onus of proof that confessions not induced by threat or promise
EVIDENCE – CRIMINAL TRIAL – ADMISSIBILITY – POLICE RECORDS OF INTERVIEW – whether records of interview were induced by threat or promise – whether prosecution bears onus of proof that inducements were not offered
Criminal Law Amendment Act 1894
R v Bradvica unreported 8 March 2005 per O’Sullivan DCJ transcript page 382 R v Zaveckas (1970) 54 Cr App R 202 R v Smith (19590 43 Cr App R 121 at 126 Wendo v R (1966) 109 CLR 559 at 573
COUNSEL:	Mac Giolla Ri, for the applicant defendant Cupina for the respondent
SOLICITORS:	Volk Lawyers for the applicant defendant Director of Public Prosecutions for the respondent

1. The defendant has made a pre-trial application to exclude audio-taped records of interview made on four days between him and officers of the Queensland Police Service. The audio tapes are exhibits 1, 2A, 2B, 3, 4, 5 and 6, which were tendered before me during the hearing of this application. The defendant set out several bases for exclusion in written submissions but reduced these in oral submissions to one: Admissions in the records were induced rendering the confessions inadmissible pursuant to Criminal Law Amendment Act (1894) s10. Significantly, the defendant abandoned all arguments which required that I consider whether to exclude the records of interview on discretionary bases. At one stage the defendant was conducting his case as if to challenge the accuracy of confessions to two of twenty offences. I have not been required to rule on that basis.

   Effect of Confessions Induced by any Threat or Promise?

2. The Criminal Law Amendment Act 1894 s 10 provides:

   10 Confessions

   “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 be shown.”

3. The records of interview contain confessions to twenty-one offences. The defendant was charged on indictment 1667 of 2009 with twenty of those. The Crown accepts that it bears the onus of establishing on the balance of probabilities that the confessions were voluntary in the sense that they were not induced by any threat or promise by officers of the Queensland Police Service.

4. There were no submissions expressly as to the party which bears the onus that inducements were offered. I inferred that each party operated on the assumption that the Crown bears the onus of proof that inducements were not offered. Defence counsel referred me to a transcript of an unreported ex tempore decision of R v Bradvica[1]. In that case her Honour Judge O’Sullivan referred to the prosecution’s onus of proof that the confessions were voluntary and added “I must be positively satisfied that an inducement was not offered”. That decision would be consistent with the Crown’s bearing the burden of proof of two factual matters – that no inducement was offered and that, if offered, the confessions obtained were not obtained because of the inducement. That approach does not accord with the words of the section. According to the words of the section, there are two factual issues identified and the onus of proof is expressly placed upon the prosecution for only one of the two. I consider that the defendant bears the onus of proof on the balance of probabilities that threats or promises were made and the Crown bears the onus of proof that threats or promises so established to have been made did not induce confessions. The standard of proof is upon the balance of probabilities.[2] The logical first step is to consider whether there were threats or promises made and then to consider the separate question of whether the prosecution established that any threats or promises found to have been made did not induce the recorded confessions.

   [1] 8 March 2005 per O’Sullivan DCJ transcript page 382

   [2] Wendo v R (1966) 109 CLR 559 at 573

5. In respect of all 20 counts in the indictment, the Crown case is based upon admissions by the defendant and contained in the audio-taped records of interview over four consecutive days from 29 June 2008. By confining arguments about exclusion to arguments arising from Criminal Law Amendment Act 1894 s 10 it has the consequence that I am not required or permitted to exercise a discretion. If any confession contained in a record of interview was induced by a threat or promise, I would have no discretion to rule it admissible. I would be obliged to rule it inadmissible.

6. The were two main factual issues: whether or not there were threats or promises and whether they induced the records of interview. The parties have not sought to distinguish between records of interview. There are seven audio tapes which were recorded at different times over four days by four different sets of police officers. Neither party submitted that the merits for admitting or rejecting evidence differed between tapes. The circumstances of the interviews differed from day to day. It is sensible to consider the evidence of the circumstances chronologically. If promises or threats were made, the timing of them is relevant to considering whether they induced confessions.

7. There was credible prosecution evidence that the defendant raised with police officers the prospect of making admissions in return for favours on the day of his arrest. If this evidence is accepted, it is relevant. It is not determinative if the defendant was the one who invited a promise from police officers.[3] If the defendant asked a police officer to make a promise and the officer complied by making a promise and a confession followed, the confession would be preceded by a promise and by operation of the Criminal Law Amendment Act 1894 s 10 would be inadmissible unless the prosecution satisfied the onus of proof that the confession was not induced by the promise. Proof of a promise given prior to a confession to provide even a small favour will put the prosecution to the burden of proof that the promise did not induce the confession.[4] In this case the promises alleged were to assist with applying for bail and to allow short visits to the defendant’s fiancée. The alleged inducements are relatively trivial things compared with confessions to various serious offences some of which the police had not connected with the defendant. The relative triviality of a promise does not prevent the operation of the section.

   [3] R v Zaveckas (1970) 54 Cr App R 202

   [4] R v Smith (19590 43 Cr App R 121 at 126

   The alleged offences

8. The 20 counts in the indictment relate to offences alleged over 4½ years. The counts in the indictment and their relevant details are:

Count	Date	Offence	Location
1	5/1/04	Robbery	Convenience store Richmond Road, Morningside
2	17/2/04	Robbery	Blockbuster Store, Morningside
3	7/7/05	Robbery	Blockbuster store, Morningside
4	8-	Burglary	Wyranda Crescent,

13/12/07 Murrarie

5	13/1/08	Burglary	Moncrief Road, Cannon Hill
6 & 7	21/1/08	Burglary	1/713 Wynnum Road,
UUMV	Morningside
8	12/2/08	Burglary	4 Letchworth Street, Coorparoo
9	24/2/08	UUMV	Amelia Street, Coorparoo
10	24/2/08	Burglary	Gladstone Street, Coorparoo
11	28 Feb-	Enter	Greenslopes
3 March	premises
08
12	2-	Burglary	21 Foxton Street,
5/03/08	Morningside
13	7/3/08	Burglary	4 Letchworth Street, Coorparoo
14	15/3/08	Burglary	119 Tamaree Avenue, Wynnum
15	19/5/08	Robbery	BP Service Station, Mackay
16	12/6/08	Robbery	7-11 Store, 333 George Street, Brisbane City
17	21/6/08	Robbery	Convenience Store, 69 Ann Street, Brisbane City
18	25/6/08	Enter	Relationships Australia,
premises	Spring Hill
19	25/6/08	Robbery	7-11 Store, 231 George Street, Brisbane City
20	26/6/08	Robbery	Caltex Service Station, Camp Hill

The defendant’s credibility and reliability

1. The defendant was recorded on audio-tape denying that he had received threats or inducements. Examples of denials in the transcripts of the records of interview include:

(a)	29/06/2008 while in custody under arrest in relation to counts 16,18 and 19, and before making any confession, soon after the start of a record of interview with police officers Caulfield and Jakes at BCW commencing 9:24 am;[5]
(b)	29/06/08 with the same officers during a drive around before 11:52 am;[6]
(c)	at the BCW in a record of interview with const. Jakes and sergeant Cooper commenced on 30/06/2008 at 8:25 am, shortly after the interview began;[7]
(d)	in the same interview and before speaking of any specific offences;[8]
(e)	in a record of interview with senior constables Kitto and Jakeman at the Dutton Park police station on 01/07/2008 between 10:49 am and 11:21 am shortly after the interview commenced and before further questions about specific offences;[9]
(f)	in the same interview shortly before terminating at 11:21 am before doing a drive around with the same police officers;[10]
(g)	01/07/2008 in the course of a drive around interview with senior constables Jakeman, Candale and Kitto commencing 12:49 pm, before making specific confessions;[11]
(h)	after suspension of that interview and re-commencement at 1:28 pm after having driven to Morningside and before making further admissions about an offence at Morningside;[12]
(i)	after suspension of that interview and resumption at an address in Wynnum at 1:53 pm during the course of the drive around after receiving a confession with respect to an offence at 119 Tamaree Avenue and after having driven from there to 21 Foxton Street, Morningside, but before a further confession with respect to an offence at that address;[13]
(j)	after a visit to the defendant’s mother and girlfriend during a suspension of the interview the defendant denied shortly after 3:24 pm that the visit was a result of a promise made to the defendant to talk to police;[14]
(k)	on 02/07/2008 in the course of a drive around with police senior constables Candale, Kitto and Jakeman commencing 9:31 am and concluding 11:19 am and before any further confessions;[15]
(l)	at about 10:07 am at Cooper Street, Murarrie and before making a further confession in respect of an offence at that address;[16]
(m)	at the end of that drive around shortly before 11:19 am.

[5]            Transcript of police record of interview 29/06/2008 time 9:24 am, p 3, L 18 and p 4, L 49 and L 55

[6]            Transcript of police record of interview 29/06/2008 time 9:24 am, p 27, L5.

[7]            Transcript of police record of interview 30/06/2008 time 8:25 am, p 2, L51.

[8]            Transcript of police record of interview 30/06/2008 time 8:25 am, p 5, L8.

[9]            Transcript of police record of interview 01/07/2008 time 10:49 am, p 4, L13 – 35.

[10]           Transcript of police record of interview 01/07/2008 time 10:49 am, p 25, L 29.

[11]           Transcript of police record of interview 01/07/2008 time 12:49 pm, p 5, from about point 5 of about point 9.

[12]           Transcript of police record of interview 01/07/2008 time 12:49 pm, p 13 at point 10 and p 14 at point 1.

[13]           Transcript of police record of interview 01/07/2008 time 12:49 pm, p 22 at about point 6.

[14]           Transcript of police record of interview 01/07/2008 time 12:49 pm, p 29 at point 8 – p 30 point 3.

[15]           Transcript of police record of interview 02/07/2008 p 4 L18.

[16]           Transcript of police record of interview 02/07/2008 p 8, L40.

1. The defendant’s denials of threats or inducements were audible on the audio-taped records of interview. They sounded realistic and unforced. Constable Jakes and Senior Constable Caulfield conducted the record of interview on 29 June 2008. Constable Jakes and Sergeant Cooper conducted the record of interview on 30 June 2008. Senior Constable Kitto and Senior Constable Jakeman conducted the record of interview on 1 July 2008. Senior Constable Kitto, Senior Constable Jakeman and Senior Constable Candale conducted the record of interview on 2 July 2008.

2. The defendant gave oral evidence of offers of inducement. In his evidence in chief, when answering questions which did not suggest an answer, the defendant’s evidence of inducements offered was scant. The defendant’s evidence of inducements offered became more detailed by his adoption of the detail put to him by leading questions, mostly from prosecuting counsel. I regard the defendant’s evidence as generally unimpressive for this reason. The defendant’s criminal history was not in evidence although it emerged that he has an extensive one. That led me to be sceptical of his credibility. He has impaired memory. This leads me to find his recollections are unreliable. These observations do not lead me to find that his evidence was consistently untruthful or false. He did not adopt one apparently self serving proposition put to him. He did not adopt an aspect of the case run by his counsel, that he had been also induced by offers of a letter of comfort. Without corroboration, the defendant’s evidence would be unpersuasive. This is a difficulty for him when attempting to satisfy his onus of proof of threats or promises being made but less of a difficulty where the Crown bears the onus that confessions made after promises were not induced by the threat or promise.

3. The defendant gave evidence that he was asked to say that no inducements were offered in answer to the question whenever it would be asked during interview recording. His testimony did not persuade me to accept this aspect of his evidence.

   The interviews

4. On Friday 27 June 2008 at 4:40pm, the defendant, a young man with an extensive criminal history, was arrested as he walked along 134 Alistair Street at Lota. He had been walking with his fiancée. She was pregnant with his child. Unbeknown to the arresting officers the defendant swallowed a bag or two of “speed” as the police were apprehending him. He was driven to the Upper Mount Gravatt Police Station by Constable Reynolds and Detective Sergeant Watts. Neither police officer had a recording device at the time of the arrest or during the journey to the police station. The defendant did not give evidence of being induced to make a confession by reason of any events occurring during the arrest or the journey to the police station.

5. On the evening of 27 June 2008 at the Upper Mount Gravatt Police Station, the defendant’s fiancée was present but was kept away from him in another room. The defendant was aware of this. He refused to be interviewed by Sergeant Watts and refused to allow his refusal to be tape-recorded. The defendant spoke with a solicitor by telephone. Despite the defendant’s refusal to give an interview, I accept the evidence of Sergeant Watts that the defendant was trying to get from Sergeant Watts the best deal for himself by offering interviews and information in return for bail or a notice to appear. Sergeant Watts refused to offer such deals. The defendant did not give evidence of being induced to make a confession by reason of any events occurring that evening at the police station at Upper Mount Gravatt.

6. The defendant’s offers on 27 June 2008 to Sergeant Watts to trade an interview for favours make more plausible his evidence that he was prepared on subsequent days to give an interview in return for favourable treatment.

7. At about 10.30pm the defendant was transported from the Upper Mount Gravatt police station to the Brisbane City Watchhouse (BCW) by police officers Jakes and Caulfield. He was there charged with counts 16, 18 and 19 which relate to offences in the city and nearby Spring Hill. It seems that police officers did not know to connect the defendant with the other 18 alleged offences about which the defendant subsequently made admissions. On the journey to BCW, the defendant offered to make admissions if he could be released on bail. I accept the evidence of Constable Jakes that he told the defendant that bail was “out of our hands”. One reason the defendant wanted bail was to be with his pregnant fiancée.

8. The defendant’s further offer on that journey to make admissions in return for bail makes more plausible the evidence that he was prepared on subsequent days to give an interview in return for promises of favourable treatment relating to visits with his fiancée.

9. On Saturday 28 June officers Jakes and Caulfield went to BCW to see the defendant. They took the defendant from BCW to the next door Brisbane CIB. Officer Caulfield gave evidence of going to the BCW for the purpose of offering the defendant a drive around. Officer Jakes contradicts that. He said that he went to see the defendant because of an inkling that the defendant may give an interview. I do not propose to resolve that conflict. That conflict does not cause me to doubt the credibility of either officer. Defence counsel did not submit that drive arounds were inducements. He submits they were the means to the defendant’s end of meeting his fiancée and that promises of meetings were the inducement. I accept the evidence of officer Jakes that, as a result of his time with the defendant on the prior evening, he had an inkling that the defendant may participate in an interview. That inkling is consistent with other evidence I accept that the defendant had offered to do a deal. On 28 June the defendant spoke to the two officers about wanting bail so that he could look after his pregnant wife. There is a dispute on the evidence as to whether police officers offered inducement for an interview that day. The defendant says that on that day officer Jakes told him that he had spoken with the defendant’s fiancée and asked her to stay in the city with a view to meeting the defendant and that in return for co-operation the defendant could meet her and the police officers would not object when the defendant applied for bail on Monday. It is correct that officer Jakes spoke with her in the Magistrates Court. These alleged promises were allegedly offered in return for “an interview about the city jobs”. If such an offer was made, it must have referred to the alleged offences which are the subject of counts 16, 18 and 19 for which the defendant had been charged on the previous evening. I accept the evidence of officer Jakes that he said words to the effect “bail is out of our hands … it is up to the court”. The defendant refused at the CIB to participate in an interview.

1. I reject the defendant’s evidence that on 28 June he was offered bail or co-operation with his application for bail proposed for Monday, 30 June 2008. His allegation of such an offer made on the 28 June is not consistent with his refusal to give an interview that day or with his continuing co-operation with other police officers after bail was refused on Monday 30 June. He did not complain to the court or to police officers when bail was opposed by the prosecution on Monday, 30 June. After bail had been refused on the Monday, he was not approached again by officers Caulfield or Jakes. The defence argues that this was because they had broken their promise about bail and knew that the defendant would be uncooperative. I reject that because the defendant voiced no complaint and continued to co-operate, although with other police officers, on Tuesday and Wednesday. Unfortunately, there were conversations with the defendant which were not recorded. It makes findings about what was said problematic.

2. Pursuant to the Police Powers & Responsibilities Act 2000 s.431(1), a police officer must, before a relevant person is questioned, caution the person in the way required under the Responsibilities Code. Pursuant to s.435 of that Act, such an officer giving a caution must, if practicable, electronically record the giving of the caution and the person’s response. On 28 June and over subsequent days there were other occasions when conversations occurred between police officers and the defendant which were not recorded. There were occasions during the several drives around when recordings were being made but were intermittently discontinued. These gaps in the evidence have disadvantaged the prosecution. Even though I find that the defendant bears the onus of proof of promises being made, the failure of police officers to comply with the requirements of sections 431 and 435 on 28 June and subsequently raise doubts which are relevant to consider.

3. Was a meeting with the defendant’s fiancée offered on 28 June? The relevant officers deny it. They did not electronically record their conversations with the defendant at the BCW or at the CIB. They were at the CIB for 95 minutes with a defendant who had refused to give an interview the preceding day, before and after speaking to a solicitor. His offers of interviews had been only on the condition that favours be granted. There was no recording of conversations with the defendant on 28 June. When the defendant did cooperatively submit on 29 June to a recorded interview, it would have been usual practice for the investigating officers to ask him to accept what transpired between them the day before. That did not occur.

4. The prosecution submitted that the correct explanation for the visit to the defendant on 28 June was one which the officers forgot when they gave evidence before me. It was submitted that exhibit 10 reveals a positive match between the defendant’s fingerprint and a print found at the scene of the offence alleged in count 18 and that the officers must have collected the defendant to discuss this new matter with him. I reject that as the explanation for the visit because there was no record of any attempt to interview the defendant in respect of that offence.

5. The uninvited visit to the BCW to a defendant who had refused interviews, the failure to record conversations that day and the failure to ask the defendant to adopt events of 28 June in an interview on 29 June are irregularities which the defendant relies upon as evidence of guilty concealment by police officers. I do not make such a finding against the relevant officers. It is not essential to decide whether an offer of a meeting with the defendant’s fiancée was made on 27 June as no confession was induced that day by the alleged offer and it was not submitted for the defendant that the inducements offered that day induced the confessions made on subsequent days and the defendant did not give evidence that they were effective inducements. However, if such an offer was made it would have been consistent with events which occurred next day when the defendant asked to speak to investigating police officers, actively cooperated in drive around interviews and enjoyed a meeting with his girlfriend.

6. On Sunday, 29 June 2008, Officer Jakes alleges that he received a call from the charge sergeant at BCW who indicated to him that the defendant wished to make admissions. Officers Caulfield and Jakes attended at BCW. They did not take a recording device. Conversations with the defendant could have been recorded with devices at the watchhouse. In an unrecorded conversation at BCW the defendant gave the officers sufficient information to alert officer Jakes that the defendant was admitting involvement in the offence which is now the subject of Count 17 – a robbery at another convenience store in the city. This amounted to a substantial change in the defendant’s attitude. Until that morning, the defendant had refused to give an interview in respect of two other offences in the city and one at Spring Hill. This was an admission to a fourth offence about which he had not been questioned. The failure to record the preliminary conversation with the defendant was not explained satisfactorily having regard to the expectation in the minds of investigating officers that admissions were to be offered. There should have been a caution electronically recorded first, if proper processes were followed.

7. The defendant gave evidence that on 29 June he discussed with the police officers deals to see his girlfriend. The defendant alleged that the police officers asked him off record to give them something before leaving BCW to prove that he was genuine and that they would take him to see his girlfriend. The defendant said that this was the reason he admitted to the offence at Count 17. The record of interview taken at BCW corroborated that evidence to an extent. It reveals that discussion of that offence first occurred in a conversation before recording commenced. He then admitted to the offence on the record.

8. So that police could take him to see his girlfriend the defendant said he was told off the record that he would also be obliged to admit to an offence on the side of town where his girlfriend was residing so they would have an excuse to be there. The defendant alleged that officer Jakes suggested to him off record that he say that there was clothing at his home that he had worn during an alleged home invasion offence committed at Chandos Street. The record of interview corroborates his evidence to an extent. There was clearly an off record conversation. The defendant did first take the police officers during the drive-around to Chandos Street and did purport to confess to a home invasion there. He admitted to wearing a tracksuit and to the tracksuit’s being at his home and he gave permission to the officers to go there and to take possession of the tracksuit. He was taken to his home at Lota for the purpose of finding clothes used in the alleged home invasion. While there, he did see his fiancée. He was with her for about 20 minutes. That meeting with her was not recorded and not mentioned in any conversation recorded that day.

9. The defendant has not been charged with an offence relating to the alleged home invasion at Chandos Street. He handed police officers an item of clothing which he claims to have told the police was worn by him during the home invasion. He collected that clothing from his home before being allowed time to speak with his fiancée

10. Officers Jakes and Caulfield deny that the visit by the defendant to his pregnant fiancée had been promised as an inducement. They admitted the visit. Officer Jakes said that the defendant asked for the time and he agreed. Officer Caulfield accepted that he was just being generous to the defendant in allowing the visit.

11. It is clear that on 29 June 2008 there was some conversation about an offence or offences before recording began and, during the drive around there was unrecorded conversation about the defendant’s girlfriend. It follows that the defendant’s claims are more difficult to unequivocally refute. There was evidence from officer Jakes that the defendant mentioned before leaving BCW that there was clothing evidence. It is consistent with both the defendant’s version of an inducement and the officers’ version of a prisoner wishing to make admissions. The defendant has not been charged with an offence related to a home invasion. Officers Jakes and Caulfield were from the city CIB rather than from the area where the home invasion was alleged to have occurred. There was evidence that the information relating to the home invasion was passed on to another police officer. The other officer was not identified or called. There was no explanation offered in evidence as to why the defendant was not charged in relation to the home invasion. I can speculate from the defendant’s allegation that it was an invasion to steal drugs that there is no willing complainant. But there was no evidence led as to whether the home invasion has been further investigated and, if not, why it has not. It was suggested by a question put by counsel that there was a committal hearing at which the defendant was not committed for trial. The lack of explanation adds credibility to the defendant’s evidence that the visit to collect clothes from his home was a ruse discussed with police so that he could visit his fiancée during the drive around and after an interview relating to a city job. The visit occurred and took about twenty minutes. It was not mentioned in the subsequent record of interview. According to the defendant the admissions made at BCW and in the course of the drive around were made after an improper warning that the defendant should lie in the recording about inducements. The failure to have the defendant adopt in the record that he had just been permitted a meeting with his fiancée is troubling.

12. It is not necessary for me to determine that there was an improper instruction to lie that day or that the police officers were aware that their humane offer to allow the defendant time with his pregnant fiancée may have induced confessions. Officer Jakes gave evidence that he agreed to the defendant’s request for time with his fiancée.[17] That occurred before most, if not all of the day’s recorded admissions. By agreeing that the defendant may have time officer Jakes was making a promise within the meaning of Criminal Law Amendment Act 1894 s 10 that the defendant would have time. The prosecution evidence does not make clear when the agreement was made. Officer Jakes accepted that he may have telephoned the defendant’s fiancée to make sure she was at home. The defendant’s albeit unreliable evidence that agreement to visit his fiancée was made before departing BCW was not challenged. I find that the promise of a visit was made before the recorded interviews of that day.

    [17] T 3-77 L39

13. I do not make a finding of misconduct against either officer Jakes or Caulfield. I am concerned to determine only whether a promise preceded the making of confessions that day. It matters not whether the promise was motivated by humanity or an intention to induce a confession. However, having found that a promise of a visit was made before the day’s recorded confessions it follows that the Crown bears the onus of proof that the confessions obtained after that promise were not induced by the agreement to permit the visit.

14. Before the meeting with his fiancée confessions to two offences were made – count 17 and a home invasion. After the meeting the defendant made confessions in relation to offences at counts 2, 3, 16 and generally to count 19 in the indictment. The prosecution did not argue that confessions before and after the visit were different and did not argue that these latter four confessions were not induced by the promise of a meeting which had already taken place. I will not differentiate between them.

15. The prosecution has failed to satisfy its onus of proof that confessions obtained in records of interview on 29 June 2008 were not induced by the promise that the defendant would be permitted to meet his pregnant fiancée that day. It is plausible that the promise induced those confessions. The defendant believed that his fiancée was facing deportation while he, because of a substantial criminal history, faced imprisonment if convicted of two robbery offences and one of entering premises. These factors would have made the visits important to the defendant.

16. On 30 June 2008 Constable Jakes and Sergeant Cooper visited the defendant at BCW. They recorded an interview between 8:25am and 8:45am. During that interview the defendant made some admissions with respect to offences the subject of counts 16, 17 & 19. Each of those counts were matters about which the defendant had made some admissions on 29 June 2008. The defendant’s admissions made on 29 June 2008 are ones in respect of which the Crown has failed to discharge its onus of proof that they were not induced by promises. The defendant gave no evidence of any inducements being offered to him on 30 June 2008 by officers Jakes or Cooper. Neither party made submissions as to whether confessions offered on 30 June were or were not induced by the promise which was made on 29 June. Because each of the three confessions obtained on 30 June relates to counts about which confessions were obtained on 29 June I am left with a reasonable doubt about whether the promise made on 29 June induced the confessions made on 30 June. The Crown has failed to discharge its onus of proof that these confessions were not induced by the promise made the day before.

17. The record of interview was cut short when the defendant became unwell. It seems that the bag or bags of the “speed” which he had swallowed on 27 June had burst. They made him feel unwell. He was given medical attention.

18. On the evening of 30 June, officer Kitto from Dutton Park CIB attended BCW and had the defendant brought to an interview room where the officer wished to speak to him. The defendant refused and was returned to his cell. As a result of conversations officer Kitto had with officer Jakes two days before, he thought the defendant may have been able to assist him with investigations. It was as a result of speaking to officer Jakes that officer Kitto told the defendant he wanted to ask questions in relation to two armed robberies which are now the subject of Counts 2 and 3 in the indictment.

19. On 1 July 2008 three officers from Dutton Park CIB, Kitto, Jakeman and Candale went to BCW to speak with the defendant. It seems likely that the defendant indicated to an officer at BCW that he wished to speak with police officers from Dutton Park.

20. According to the defendant’s evidence, when he met the officers at BCW on the morning of 1 July he asked them what they could do for him and told them that he wanted to be out on bail with his girl. He accepts that they explained they could not help him with bail because he had been remanded in custody. He alleged that they offered him help with bail at a later time. I do not accept this evidence. He also said that they said they could get him out to see his girlfriend if he cooperated with them. He gave evidence that before leaving BCW he spoke with his girlfriend by telephone to arrange to meet her at the defendant’s mother’s house. When the defendant left BCW he participated in a drive-around and went to Dutton Park Police Station. He gave evidence that he rang his fiancée from that police station by landline. A meeting with his fiancée was arranged for him. It was at a park across the road from her home.

21. Aspects of the defendant’s version are corroborated. Officer Kitto gave evidence that the defendant was quite emotional, locked up, sick, trying to organise a wedding, about to father a child and wanting to speak to his girlfriend. This was clear to him when they got to the watchhouse and so he allowed the phone call to be made by the defendant to his girlfriend. Officer Kitto believed that another call was permitted from the Dutton Park Police Station in order to organise a meeting with his girlfriend that day or to speak with her. The following exchange occurred during the cross-examination of officer Kitto:

    “From the morning at the watchhouse when he had said he would do an interview and one of the conditions was that he would get to see SanSiree? – organise for her to come to the station, yes, to see her, yes.”

22. Officer Kitto made it clear that he did not regard it as a promise that was given and made it clear that such a meeting would occur only if time permitted.

23. Officer Anderson recalled that the meeting was arranged between the defendant and his fiancée because the defendant was afraid she was going to be deported and he wanted to see her and she was pregnant. He also recalled that the defendant was permitted to telephone his fiancée from the Dutton Park Police Station.

24. Officer Candale recalled that throughout the day the defendant was teary eyed or upset and wanted to speak to his mother and/or to his girlfriend. He recalled that the defendant wanted to talk to them after the interviews.

25. Because of the corroboration from police officers I find that confessions obtained in interviews recorded on 1 July 2008 were obtained after a promise was made to the defendant that he could see his fiancée that day. It would be no less a promise for having been made on condition that time permits the visit.

26. The Crown has not satisfied its onus of proof that the confessions made that day were not induced by the promise.

27. On 2 July 2008 the defendant was collected from BCW and taken on a drive around by officers Kitto and Jakeman. He made admissions in respect of counts 4, 5, 9 and 10 on the indictment.

28. The defendant gave evidence that the officers met him at BCW in the interview room and asked if he was ready to go out and clear up the rest of the matters. He said that he asked where he would be meeting his fiancée that day. He said it was part of the deal that they would let him see his fiancée and in return he would co- operate and clear up the matters. He said that they agreed to do the right thing by him. There is no record of such a conversation. He participated in a drive around with the officers. He was then taken to Dutton Park Police Station. The defendant gave evidence that during the drive around he rang his fiancée again to say that he was on his way to Dutton Park Police Station. He said that he met her at Dutton Park Police Station for what he estimates to have been 15 to 20 minutes. He said it was not a long meeting because the officers were in a hurry to return him to BCW so that he could appear in court.

29. There was corroboration of the defendant’s evidence in several material respects. Officer Kitto recalls that there was conversation at BCW with the defendant which was not recorded. He gave evidence that “early that morning” the defendant made a phone call and organised for his girlfriend to come to the Dutton Park Police Station. He gave evidence that during the drive around the telephone rang for Detective Jakeman and, as a result of it, he learned that they were then required at BCW and that they were instructed to bring the defendant back to court. When this happened officer Kitto allowed the defendant to use officer Kitto’s mobile phone to ring his girlfriend to say that she should come quickly to Dutton Park Police Station because the defendant was required back in court. Officer Jakeman accepted that there was an arrangement for the defendant to meet his girlfriend that day, but they returned to Dutton Park Police Station and that while there he had seen the defendant and his fiancée when officer Jakeman watched them on a monitor. Officer Candale recalled that the defendant had time with his girlfriend and that it would have been a longer time if he had not been required at court.

1. I find that arrangements were made early on 2 July 2008 for the defendant to meet his girlfriend later in the day while he was in the custody of the officers who were taking him away from BCW. Whether the arrangement was or was not conditional on time permitting the meeting, it amounted to a promise to the defendant of a meeting with his pregnant fiancée. The promise preceded confessions which were made later that day. Accordingly, those confessions are deemed to have been induced by the promise unless the contrary be shown by the Crown. I regard it as probable that by the morning of 2 July 2008 the defendant expected that he would be imprisoned for several offences to which he had confessed over prior days. His girlfriend was pregnant and he believed that there was a risk that she would be deported to the Philippines. It is very plausible that the offer of a meeting with her would have been an inducement to the defendant to co-operate.

2. The Crown has failed to show that the confessions contained in the record of interview made on 2 July 2008 were not induced. They are not admissible.

   Conclusion

3. I order that the records of interview contained in audio tape exhibits 1, 2A, 2B, 3, 4, 5 and 6 shall not be received in evidence in any criminal proceeding against the defendant.