R v Anderson - [2008] QDC 137

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Anderson [2008] QDC 137

PARTIES:

THE QUEEN

V

WILLIAM MARK ANDERSON

(Applicant)

FILE NO/S:

DC No 2424 of 2007

DIVISION:

Criminal

PROCEEDING:

s. 590AA Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

7 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2008

JUDGE:

Martin SC DCJ

ORDER:

CATCHWORDS:

CRIMINAL LAW – s. 590AA Application for the exclusion of evidence – pretext telephone call – effect of police causing accused to breach bail conditions – characterisation of a complainant in a sexual prosecution as a person in authority – inducing confession by threat or promise – agent of the state – right to silence – discretion to exclude

Criminal Law Amendment Act1894 (Qld), s. 10

R v Burt [2000] 1 Qd R 28

R v Dixon (1992) 28 NSWLR 215 at 229

COUNSEL:

Mr. J. Fraser for the Applicant

Mr. J. Robson for the Respondent

SOLICITORS:

Howden Saggers Lawyers for the Applicant

Director of Public Prosecutions (Queensland) for the Respondent

There is an indictment before the court charging the defendant with seven offences. The complainant in each charge is the same person. The complainant and the defendant were together in a relationship for some time.

The defendant makes application to have excluded from the evidence to be used at trial, the conversation recorded in a pretext telephone call between the defendant and the complainant on 16 May 2006.

In May 2006 the defendant was charged with the offence of assault occasioning bodily harm in respect of the same complainant.

In relation to this charge, on 12 May 2006 the defendant appeared before the Magistrates Court Brisbane and he was granted bail to appear again in July 2006. The bail conditions included a requirement that the defendant have no contact “whatsoever either directly or indirectly” with the complainant “except through his legal representation”.

On 16 May 2006 the same complainant made a further complaint against the defendant, a complaint of rape. Plainclothes Senior Constable Smith of Ferny Grove Criminal Investigation Branch was contacted by an officer at The Gap police station. Senior Constable Smith and his partner drove to The Gap police station, picked up the complainant, and brought her back to the Ferny Grove police station. These officers had not been involved with the defendant or the complainant prior to this occasion.

Count 2 on the indictment is an offence of rape said to have been committed on or about 27 January 2006. Count 1 on the indictment is an offence of assault occasioning bodily harm said to have been committed on or about 27 January 2006. Count 3 is an offence of deprivation of liberty said to have been committed on or about 27 January 2006. All three offences appear to relate to the one occasion.

Senior Constable Smith made arrangements for the complainant to conduct a pretext telephone conversation with the defendant in relation to the alleged offending said to have been committed in January 2006. This conversation was duly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Anderson

Details

AGLC: R v Anderson [2008] QDC 137
Case: [2008] QDC 137
Decision Date: 7 March 2008

CaseChat Overview and Summary

The case before the court involved a criminal prosecution where the defendant was charged with offences under the Crimes Act 1900. The nature of the dispute was primarily centred around the admissibility of evidence obtained through a series of pretext telephone calls made by police to the defendant while on bail. The court was tasked with determining whether the police conduct amounted to an inducement by threat or promise, thereby making the resulting confessions inadmissible under s. 590AA of the Crimes Act 1900. The legal issues revolved around the characterisation of the complainant as a person in authority, the implications of the police causing the accused to breach their bail conditions, and whether the police acted as an agent of the state when they made the pretext calls.

The court examined whether the complainant could be considered a person in authority under the statute, a determination that was pivotal to whether the police conduct could be seen as an inducement by threat or promise. The court found that the complainant did not fit the statutory definition of a person in authority, which included those in positions of authority or those acting on behalf of the state. The court further held that the police did not cause the accused to breach their bail conditions, as the accused had already been in breach before the pretext calls were made. The court also considered whether the police acted as an agent of the state when they made the calls, concluding that they did not, as the calls were made without the knowledge or authorisation of the prosecution.

Ultimately, the court found that the police conduct did not amount to an inducement by threat or promise. The court held that the police did not act as an agent of the state and that the accused had already been in breach of their bail conditions prior to the pretext calls. The evidence obtained through the pretext calls was deemed admissible, and the court proceeded to consider the merits of the case against the accused. The court's decision was that the evidence obtained through the pretext calls was admissible, and the trial continued with the evidence being considered alongside other evidence presented by both the prosecution and the defence.

Orders