R v BJM

Case [2022] QSC 307

SUPREME COURT OF QUEENSLAND

CITATION:

R v BJM [2022] QSC 307

PARTIES:

THE QUEEN

(respondent)

v
BJM

(defendant/applicant)

FILE NO/S:

SC Indictment No 1282 of 2020

SC Indictment No 1223 of 2021

DIVISION:

Trial Division

PROCEEDING:

Pre-Trial Application to exclude evidence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

9 December 2021

JUDGE:

Applegarth J

ORDER:

The application is dismissed

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – POLICE INTERROGATION – PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT – GENERALLY – where the accused made admissions to an undercover police officer in a watchhouse cell – where the accused previously refused to answer police questions – whether admissions were illegally or improperly obtained – whether discretion to exclude evidence should be exercised

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED –    GENERALLY – where the accused made recorded admissions to an undercover police officer after refusing to respond to police questioning – where parts of recording are inaudible or indistinct – whether discretion to exclude evidence should be exercised

Evidence Act 1977 (Qld), s 130
Judges’ Rules, Rule 2
Police Powers and Responsibilities Act2000 (Qld), Chapter 15, ss 396, 397, 418, 431

Police Powers and Responsibilities Regulation 2012 (Qld), sch 9, ss 23 and 26

Azzopardi v The Queen (2001) 205 CLR 50, cited
Bunning v Cross (1978) 141 CLR 54, cited
Foster v The Queen (1993) 113 ALR 1, cited
Illinois v Perkins (1990) 496 US 292, cited
Pavitt v The Queen (2007) 169 A Crim R 452; [2007] NSWCCA 88, cited
R v Appleton [2016] QSC 250, cited
R v BCU [2014] QCA 292, cited
R v Bercolli & Ioannou unreported, Queensland Court of Criminal Appeal, 18 May 1990, CA 22, 23/1990, cited
R v Belford and Bound (2011) 208 A Crim R 256; [2011] QCA 43, cited
R v Brookes [2000] QCA 19, cited
R v Broyles [1991] 3 SCR 595, cited
R v Caulfield [2012] QCA 204, cited
R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1, cited
R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239, cited
R v Hebert [1990] 2 SCR 151, cited
R v Juric (2002) 4 VR 411; [2002] VSCA 77, cited
R v Krezic [2017] QCA 122, cited
R v Lee (1950) 82 CLR 133, cited
R v Lobban (2000) 77 SASR 24, cited
R v O’Neill [1996] 2 Qd R 326, cited
R v P & Anor (2016) 258 A Crim R 9; [2016] QSC 49, cited
R v Sang [1980] AC 402, cited
R v Swaffield (1998) 192 CLR 159, considered
Rogers v Richmond (1961) 365 US 534, cited
Sorby v The Commonwealth (1983) 152 CLR 281, cited
Tofilau v…

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Details
AGLC
R v BJM [2022] QSC 307
Case
[2022] QSC 307
Decision Date

CaseChat Overview and Summary

In the case of R v BJM, the applicant sought to exclude the evidence obtained through the use of an undercover police officer in a watchhouse cell. The applicant had previously refused to answer police questions and was subsequently arrested and taken to a watchhouse where he made admissions to the undercover officer. The court was tasked with determining whether these admissions were illegally or improperly obtained, and whether the discretion to exclude evidence should be exercised. The applicant argued that the evidence was obtained at an unacceptable price, having regard to prevailing community standards, and that the public policy and broader discretions should be exercised to exclude the evidence.

The court considered the legal issues of whether the watchhouse admissions were illegally or improperly obtained, and whether the discretion to exclude evidence should be exercised. The court found that the conduct of the police officers involved in the investigation did not breach any law or code governing police questioning of suspects or covert police operations. However, the court acknowledged that conduct may be unacceptable having regard to prevailing community standards without it being illegal or unlawful. The court noted that conduct that is allowed or even encouraged by the executive may not be conduct that courts wish to encourage or be seen to tolerate by allowing the product of that conduct to be admitted into evidence.

The court exercised its discretion to exclude evidence and dismissed the application. The court found that the evidence obtained through the use of the undercover police officer was not obtained at an unacceptable price, having regard to prevailing community standards. The court also found that the public policy and broader discretions should not be exercised to exclude the evidence. The court held that the applicant's admissions were voluntary and not the result of any impropriety or unfairness on the part of the police.

No orders were made.

Orders

Orders of the court

The application is dismissed

Background

Background to the litigation

The application raises the following substantial issues: ·Were the watchhouse admissions illegally obtained? ·Were the watchhouse admissions improperly obtained? ·Should the unfairness discretion be exercised?·Should the public policy discretion (or the broader discretion discussed in Swaffield) be exercised? ·Do occasional difficulties with the audibility of the recorded conversation justify exclusion of the recorded conversation on the ground that the prejudicial effect of the evidence substantially outweighs its probative value? Facts On 6 November 2019, a woman was shot in the face when she came to her front door. Police investigations indicated that she was the mistaken target of an act of revenge by the applicant, who went to the wrong house. On 10 November 2019, police executed a search warrant in relation to the attempted murder. The applicant was told of his right not to answer questions and was given the opportunity to speak to a friend, a relative or a lawyer. He declined those opportunities and spoke to police. He denied being involved in the 6 November shooting. During the search the applicant participated in questioning about various drug-related items found on the premises. At one point the applicant asked to speak to his lawyer and the questioning ended. He was taken to a police station and declined to be interviewed, after which he was charged with drug related offences and granted bail. Police investigations continued into the shooting. Police planned to arrest the applicant at around 7:30am on 3 April 2020 and made a request for an LEP to be utilised when the applicant was placed in a watchhouse cell. The officers involved in the investigation understood that such a covert method was legal. That belief was reasonable because, as noted, the provisions of the PPRA about police questioning for indictable offences do not apply to a police officer performing functions in a covert way. The relevant officers’ training did not suggest to them that the planned course of action was illegal or improper. At 7:35am police attended at the applicant’s home. He was arrested for attempted murder. He was cautioned and asked to speak to his lawyer. He was taken at 7:42am to the Brisbane City Watchhouse, arriving there at 8:25am. Shortly before his arrival police had arranged for the LEP to be placed into a cell, and at 8:42am the applicant was placed into the same cell. The applicant and the LEP were the only persons in the cell at this time. A conversation between the two ensued. After being asked if he was sick, the applicant disclosed that he had “snorted heaps of coke last night”. The applicant asked the LEP what he had been “nabbed for”. The reply was “doin’ drugs”. The applicant then stated that he had “got done” for “a half K” and that “last November bro they get me for attempted murder man”. He made other statements about his “crew” and that the drama “had to do [with] some retaliation and shit”. The applicant said that he thought he “might be able to beat it”. Other admissions were made.

Evidence

Evidence Before The Court

It is convenient to address the question raised in Swaffield of whether, having regard to the means by which the evidence was obtained it has been obtained “at a price which is unacceptable having regard to prevailing community standards”. To the extent that this “invests a broad discretion in the court” it overlaps with the public policy discretion. Was the evidence obtained at an unacceptable price having regard to prevailing community standards? This question raises the issue of the sources from which the court is to discern “prevailing community standards” that relate to the conduct of police. One obvious source are standards of conduct enacted on behalf of the community by its Parliament. The conduct complained about in this application did not breach any law or code governing police questioning of suspects or covert police operations. Conduct may be “unacceptable having regard to prevailing community standards” without it being illegal or unlawful. Conduct that is allowed or even encouraged by the executive may not be conduct that courts wish to encourage or be seen to tolerate by allowing the product of that conduct to be admitted into evidence. These considerations inform the exercise of the public policy discretion.[70][70]R v P & Anor (2016) 258 A Crim R 9 at 21-22 [61]-[62]. Unacceptable conduct is not confined to conduct that is prohibited by legislation. It extends to conduct that is unacceptable having regard to freedoms and rights recognised by the common law. This State, like many other jurisdictions, has had the bitter experience of police malpractice. Police misconduct, including the widespread use of “verbals”, was the subject of official investigation and recommendations for reform in the late 1970s.[71] Despite the recommendations of an inquiry chaired by Justice Lucas there was legislative inertia. It fell to Judges of this Court and other courts to apply the Judges’ Rules so as to exclude evidence that was obtained by unacceptable conduct. [72] [71]Committee of Inquiry into the Enforcement of Criminal Law in Queensland, 1976-1977 (commonly referred to as the Lucas Inquiry). [72]PDT Applegarth, “Police Malpractice: A Judicial Response” in Basten, Richardson, Ronalds and Zdenkowski, “The Criminal Injustice System” (Legal Service Bulletin, 1982). The Queensland Parliament eventually enacted laws to regulate questioning by police for indictable offences. The laws did not abrogate in any presently relevant circumstance what may loosely be described as “the right to silence”. The laws regulated police questioning and enhanced the ability of individuals to exercise their right to silence by providing for cautions, access to lawyers before questioning commenced and the compulsory recording of confessional and similar statements. A legislative choice was made that these rules should apply to police exercising authority as police. Significantly, the Parliament provided that these rules do not apply to police exercising functions in a covert way.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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