R v Bertomeu - [2003] QDC 575

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Bertomeu & Ors [2003] QDC 575
PARTIES:	THE QUEEN v CHRISTOPHER PHILIP BERTOMEU CHRIS LEE BIANCO RACHEL ANNE CHARTERS LUKE JUSTIN SWANSON
FILE NO/S:	Indictment No D 3082 of 2002
DIVISION:	Criminal jurisdiction
PROCEEDING:	Pre trial hearing
ORIGINATING
COURT:	District Court
DELIVERED ON:	25 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	1,2,3 and 4 September 2003
JUDGE:	Judge Robin QC
ORDER:	Applications for exclusion of records of interview and separate trials refused
CATCHWORDS:
COUNSEL:	CK Copley for the Crown A Glynn SC for Bertomeu instructed by Robertson O’Gorman Donaldson for Bianco instructed by Jacobsen Mahony B Reilly for Charters instructed by Jacobsen Mahony A Kimmins for Swanson instructed by Jacobsen Mahony

The indictment charges all four defendants with six counts referable to a “home invasion” at [name withheld] Avenue, Woodridge at about 2.30 am on 5 January 2001, namely:

1.	entering a dwelling with intent to commit an indictable offence (by means of a break);
2.	robbing Robert Victor Keeble whilst armed, in company and with use of personal violence to him;
3.	unlawfully assaulting Mr Keeble and doing him bodily harm whilst armed and in company;
4.	a like offence against Lynne Maree Charters;
5.	unlawfully detaining Mr Keeble against his will; and
6.	a like offence against Lynnne Maree Charters (erroneously called Chambers, as the indictment stands).

The matter comes before the court under s 592A of the Criminal Code on applications of the defendants Bianco and Charters for exclusion from evidence of tape recorded records of interview which they gave separately to police on 7 February 2001 and consequential applications by the other defendants for separate trials as necessary to ensure that neither of them faces possible prejudice which might follow from one or both of the records of interview getting into evidence before a jury.

Two co-offenders, JC, a juvenile, and Douglas Kirk have pleaded guilty to offences (the precise description of which was not made clear) and been dealt with. Each of them has provided police with a statement implicating the others, at least to the extent of being part of a group of six of them which met up at a McDonalds restaurant at Springwood, proceeded to [name withheld] Avenue in two vehicles and, after the home invasion incident, left together in those vehicles.
The female complainant is the mother of JC and [related to] the defendant Charters. She was living with the male complainant. To the extent that possible explanations for the incident have been given, the dominant one is that he was to be given some kind of warning or lesson because of alleged inappropriate and persistent threatening conduct on his part towards her mother (Rachel Charters’ grandmother). As things stand, much remains uncertain. There are suggestions that the use of actual violence may have been unplanned, likewise the stealing of property, as to which each of the young female participants has presented that as an enterprise of the other one. Such versions as exist…

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 Bertomeu

Details

AGLC: R v Bertomeu [2003] QDC 575
Case: [2003] QDC 575
Decision Date: 25/09/2003

CaseChat Overview and Summary

The case of R v Bertomeu involved a number of defendants facing charges arising from an alleged home invasion. The dispute centred on the admissibility of statements made by one of the defendants, Ms Charters, during a police interview. The matter was heard in a court in Queensland, Australia. The central legal issue revolved around whether the statements made by Ms Charters during the interview were voluntary and thus admissible as evidence. The court needed to determine if the conditions under which the interview took place, including the deprivation of food and the circumstances surrounding her request for a solicitor, rendered her will susceptible to being overcome.

The court considered several factors in its reasoning, including the duration of Ms Charters' detention, the lack of access to food and a telephone book, and the absence of any explanation about the reasons for her detention. It was noted that while these factors did not individually establish a lack of voluntariness, they contributed to an atmosphere that could potentially affect a person's free will. The court also highlighted that Ms Charters had requested legal advice and that her solicitor had declined to participate in the interview, further emphasizing the conditions under which the interview occurred. The court ultimately concluded that the totality of these circumstances did not render the interview involuntary and thus the statements made by Ms Charters were admissible.

The final orders of the court were to deny the applications for the exclusion of records of the interview and to refuse separate trials. The court found that the interview was conducted within the bounds of the law and the statements made by Ms Charters were voluntary, thereby upholding their admissibility as evidence.

Orders

Orders of the court

Applications for exclusion of records of interview and

separate trials refused

Background

Background to the litigation

Regarding Ms Charters, Mr Reilly’s outline of submissions offers the following chronology: “Background: 4. The accused woman is charged with a number of offences arising from an alleged home invasion of premises at Woodridge. This was alleged to have occurred about 2.30 am on 5 January, 2001. It was alleged that some of the intruders were armed and caused personal injury to 2 occupants of the residence. 5. Police allege that on 30 January, a [JC] attended at the Eden Police station in NSW and provided a statement which, inter alia, implicated the accused. 6. At 8.41 am, on 7 February, a number of police officers attended at a residence at Caithness Ct, Bundall. A search warrant was executed. The accused woman was located at that residence and, within a short time of the arrival of police, she was placed under arrest. Ms Charters was then conveyed to Beenleigh Police Station. 7. The interview with police commenced at 1.43 pm – about 5 hours after she had been taken into police custody. Prior to the interview it is common ground that Ms Charters requested a solicitor and police arranged for a Bruce Affleck to attend. It does not appear that Ms Charters was given a choice of lawyers or provided with a telephone book. Mr Affleck later told Det Frame that Ms Charters did not wish to give an interview ( p 68 deps). Mr Affleck left the station. Subsequent to this, the interview occurs. 8. Also present with the accused throughout the interview was her aunt, Michelle Charters. Michelle was told that it was her role to act “as support for Rachel” – p4p ROI. 9. In the course of the interview, Ms Charters indicated that she was at the subject premises at the time of the offences and had attended there with a number of others. She denied that anyone was, to her knowledge, armed. She indicated that the purpose in going there was to “warn” one of the occupants to cease harassment of her grandmother. Ms Charters did admit that prior to entering the residence, one person had mentioned stealing some property.” It is worthy of mention that she knew some days prior to the attendance of police that JC had made her statement. The submission goes on: “Prior to the interview occurring, Ms Chandler (sic) claims that Mr Reilly organized the evidence in another way in another section of his written submissions: “It is submitted that there are a number of facts which are either common ground or which ought be found to be established by the evidence. These include:- (i) That Ms Charters had been in police custody since approximately 8.50 am; (ii) that she had awoken at the time of the execution of the search warrants. (iii) That she had noting to eat up to the point when the interview was conducted at 1.43. (iv) that she was confined in a room at the police station and a significant amount of this was in an interview room. (v) that recorded on a tape of the proceedings at the residence of Ms Charters is a reference by her to Mr Potts, a lawyer (vi) that she requested legal advice at the police station and was, ultimately, provided with access by a Mr Affleck from Harris Sushames; (vii) That she had not requested that solicitor and his presence there was at the request of police officer Frame. It is submitted that convenience for police seemed the primary reason for this. (viii) Ms Charters was not provided with a telephone book or access to a telephone during this process; (ix) Mr Affleck provided advice to Ms Charters and indicated to police that there would be no interview (x) Within a short time of that occurring, the interview commences. (xi) During her detention, Ms Charters had cried. (xii) Officer Kidston, although charged with the welfare of Ms Charters did nothing to ensure she was adequately nourished. (xiii) No police officer had told Ms Charters why she was being detained or what the time limit was.” [Numbers added] Whilst these matters, of themselves, do not establish a lack of voluntariness, it is submitted that there are relevant to the question of whether the ultimate actions of Ms Charters bore that character. It is submitted that these circumstances created an atmosphere within which the will of any person would be susceptible to being overcome.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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