R v Bligh

[2012] QDC 146

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Bligh [2012] QDC 146

PARTIES:

R

V

Patrick Dwayne BLIGH

FILE NO/S:

2717/12(3)

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Kingaroy

DELIVERED ON:

7 June 2012 (ex tempore)

DELIVERED AT:

Kingaroy

HEARING DATE:

5 - 7 June 2012

JUDGE:

Irwin DCJ

ORDER:

1. The admissions made by the defendant Patrick Wayne Bligh on 12 November 2011 to Plain Clothes Constable Joshua Ryan in the interview room at the Murgon Police Station prior to the commencement of the recorded interview be excluded from the trial.
2. The recorded interview between Patrick Dwayne Bligh and Plain Clothes Constable Ryan conducted subsequently on 12 November 2011 also at the Murgon Police Station be excluded from the trial.

CATCHWORDS:

CRIMINAL LAW - Evidence - admissibility - confessions and admissions - whether statements made by accused during interviews with police officers involuntary - where the statements were made by accused following police non compliance with statutory requirements - discretion to exclude - fairness discretion - public policy.

Criminal Law Amendment Act 1894 (Qld), s 10

Police Powers and Responsibilities Act 2000 (Qld), s 415, s 418, s 420, s 431, s 436, s 437, Schedule 6.

Schedule 10 (Responsibilities Code), s 34, s 36, s 37.

Bunning v Cross (1978) 52 ALJR 561; 43 ALR 619, applied.

Cleland v The Queen (1982) 151 CLR 1, applied.

Pollard v The Queen (1992) 176 CLR 177, applied.

The Queen v Swaffield (1998) 192 CLR 159, applied.

HIS HONOUR:  Patrick Dwayne Bligh is charged with two counts of arson of a motor vehicle.  One is alleged to have occurred on the 11th of November 2011 at Murgon, and the other or about the 12th day of November 2011 at Murgon.

This is an application brought on his behalf to exclude evidence upon his trial which commenced earlier this week with the pleas to the indictment and the empanelment of a jury. 

The orders sought are that the evidence of admissions made by Mr Bligh on 12 November 2011 to plain clothes Constable Ryan in a room at the Murgon Police Station prior to the commencement of the electronically recorded interview be excluded from the trial, and the recorded interview between he and Ryan on 12 November 2011 also at the Murgon Police Station, which interview was electronically recorded be excluded from the trial.

Mr Bligh is charged with Michael John Clevens jointly in respect of the first count alleged to have been committed on 11 November 2011.  The admissibility of Mr Clevens record of interview, which was electronically recorded with Detective Sergeant Bull and an earlier digitally recorded conversation with plain clothes Constable Ryan, is the subject of a separate application before me.  Both applications have been heard together but it is convenient having heard the submissions from Ms Dennis, the Crown Prosecutor, and Ms Cuthbert, for Mr Bligh, to determine this application first.

I note that there is some urgency in resolving this application due to the fact that the jury has been empanelled and the decision will effect the future of the trial one way or the other.  Because it is still necessary to hear the argument in relation to the issues involving Mr Clevens it is not my intention to delay further the delivery of the decision in relation to Mr Bligh by detailing the submissions that were made to me.  They will appear in the transcript immediately before this decision is delivered.  I have taken them into account and I will refer to them as necessary in delivering the reasons for my decision.

Mr Bligh, accompanied police to the Murgon Police Station at some time on 12 November 2011.  After arrival at the police station he participated in a short interview with Constable Ryan in what has been termed the soft interview room at the police station. 

These conversations were not recorded, but the Crown case is that they were adopted in the electronically recorded interview that proceeded a short time later.

The challenge to the admissibility of both the alleged admissions prior to the electronically recorded interview and the electronic record of interview itself are based on voluntariness pursuant to section 10 of the Criminal Law Amendment Act 1984 and as being illegally and improperly obtained in breach of the provisions of the Police Powers and Responsibilities Act 2000.

There is some overlap between the two issues and alternative grounds for exclusion of the admissions or alleged admissions that it would be unfair to admit them into evidence, and alternatively the exercise of the public policy discretion would lead to that result.

By way of short background, at about 11 p.m. on 11 November 2011, three cars were set alight in Murgon.  Two cars were located at the rear of premises located at 76 Lamb Street, Murgon in the vicinity of what is known as CTC.  The first count concerns only one of those cars, the other car allegedly suffering damage by way of transference of the fire from the first.  The second count, on which Mr Bligh is charged alone, relates to a vehicle located at Clifton Motors in Macalister Street.

The sequence of events leading up to the interview of Mr Bligh commence at about 9.15 a.m. on that date when police interviewed Theo McLeod, initially, it would seem, as a suspect, but ultimately he became a witness on whose information the police have relied.

During this interview, McLeod nominated the defendant, Clevens, and a person known as Isiah as the persons responsible for the arson at CTC.  Isiah can be taken to be a reference to Isiah Tapau.  He did not implicate the defendant, Mr Bligh, in this offence.  This interview was completed at 9.25 a.m.

The information given in this interview triggered police activity to locate Mr Clevens at a residence in Murgon.  The two police officers who were responsible for the interview of McLeod went to this residence.  They are Sergeant Bull and Constable Ryan.  Constable Ryan conducted an interview with a digital recorder under a tree at the back of the residence where he was located.  This conversation would have taken five to 10 minutes.  He was then arrested and taken in custody back to the Murgon Police Station.

Subsequently, he participated in an electronically recorded record of interview which, together with the earlier conversations, is the subject of the other application before me.  He was interviewed later than Mr Bligh.

After Clevens had been brought to the police station and lodged in the watch-house, the police located Isiah Tapau.  Again, the same police officers were involved.  He was interviewed by Constable Ryan and nominated both Clevens and Bligh as persons responsible for the arson.  He was initially interviewed as a suspect, but despite being implicated by Mr Clevens, was relied upon by the police as a witness.

Subsequently, these same two police officers located Mr Bligh at a residence in Murgon, and on the prosecution case, he voluntarily accompanied them back to the police station.  Initially he was lodged in the soft interview room at the police station where the unrecorded interview, the subject of this application, occurred.  It was during this interview that he allegedly made admissions to lighting the fires to both vehicles and the Crown rely upon adoption of those alleged admissions in the subsequent electronically recorded record of interview.

During the initial interview in the soft interview room, no contemporaneous record was made.  According to Plain-clothes Constable Ryan, that conversation was had a minute or two after arriving at the police station and it was followed shortly after by the electronically recorded interview.

The prosecution case against Mr Bligh, it would seem to me, relies substantially, if not totally, upon the admissions alleged against him during these interviews, there being no independent forensic evidence against him.

In considering the application in relation to Mr Bligh, it is important to remember that at all relevant times he was a 17 and a-half year old indigenous youth living at Murgon.  In fact, Constable Ryan initially believed he was a juvenile when he had his first contact with him on that date.

In order to determine the application, it is not necessary to determine whether the Prosecution has established, on the balance of probabilities, that Constable Ryan did not offer and inducement to the defendant to return to the police station by saying, at the house where he was located, as was put to the police officer during his evidence, "If you cooperate with me and come to the police station I'll give you a smoke before we go."

Constable Ryan denies this and, in the absence of evidence from Mr Bligh, there is no evidence that this was said. What is important is that when Mr Bligh left the residence with Constable Ryan and Detective Sergeant Bull, he was a relevant person for the purpose of Part 3 of the Police Powers and Responsibilities Act and the Responsibilities Code, which is a Schedule to that Act.

Section 415(1) of the Police Powers and Responsibilities Act provides that Part 3, "applies to a person (relevant person) if the person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence." The exclusionary provisions of section 415(2) do not apply in the circumstances of this case.

It is important to understand that the application of this

part is not limited to a person in the custody of the police.  In this case, I am satisfied that from the moment Bligh arrived at the police station with Constable Ryan he was a relevant person within this definition on the basis of the evidence given by the Constable.  At this time, a statement had been taken by Isiah Tapau.  As I have said, this statement implicated Mr Bligh in the arson of the vehicle at CTC.

On arrival at the residence where Mr Bligh was located, Ryan's evidence is that he told him that he had been named as lighting fires at CTC and Clifton's, although he was wrong in relation to Clifton's.  Ryan's evidence also is that he told Bligh that he wanted to talk to him about this and asked him if he wanted to come with him to the police station, obviously, for this purpose.

He also cautioned and warned him. By this, I understand it to mean that he explained his right to silence and his right to communicate with a friend, relative or lawyer, as he is obliged to do if Part 3 applies, although it is not suggested that he went beyond doing this in the terms of section 37 and section 34 of the Responsibilities Code. That is, he did not, at that time, comply with the specific provisions of the Act and Code as to questioning Aboriginal and Torres Strait Islander people, as set out in section 420 of the Act and section 36 of the Code.

However, I do not decide this application on the basis that he was required to comply with those requirements at that point of time, given that Mr Bligh was not questioned about his involvement in the alleged offending prior to his return to the police station.

As Constable Ryan accepted, the purpose of taking Mr Bligh back to the police station was to do an interview with him if he wished to do so, and he explained this purpose to Bligh. Therefore, I conclude that Mr Bligh was a relevant person to which Part 3 of the Act applies.

On the issue of whether the prosecution has proved on the balance of probabilities that the alleged admissions or confessions made by Bligh at the police station, first in the soft interview room and then in the electronically recorded interview in Sergeant Bull's office were made in a free choice whether to speak or remain silent, or were not made in breach of section 10 of the Criminal Law Amendment Act 1984, the events in the soft interview room are important. I note that Bull's evidence is that this is a room for taking section 93A statements from children. The most likely reason that Constable Ryan first took Mr Bligh here is that he still regarded him as a juvenile at that time.

Constable Ryan's evidence is that he initially left Mr Bligh here while he spoke to Sergeant Bull in another part of the police station.  He says that at this time he was informed there were four warrants outstanding for Mr Bligh, although contrary to this, Sergeant Bull believed that he had communicated this to his fellow officer while Constable Ryan was still at the house where he located Mr Bligh.

Constable Ryan's evidence is that he returned to the room where Bligh was, and said in response to Bligh's question about what was going to happen to him: "You have those warrants, so you have to go to Court for them."  At least by this time, Mr Bligh was not only in the company of police for questioning, but in my view, was in police custody.  It must have been apparent to Bligh that he would be arrested on these warrants, and not allowed to leave the police station. 

To confirm this, Constable Ryan said, at page 11 of the subsequent electronically recorded interview, "Do you understand, you're under arrest in relation to some warrants?", and the defendant replied, "Yes".

There then followed the relatively short conversation, which, according to Constable Ryan, was in these terms:

"Bligh:Yeah, but I didn't do it by myself.

Ryan:What do you mean?

Bligh:Me and Micky John lit it together.

Ryan:Lit what?

Bligh:We lit the CTC car together, then we went to the other place, found the wood on the road and put it through the window.  I only lit this one once.  Micky John lit that one more than me.

Ryan:Mate, I will start a tape and go from there, okay?

Bligh:Yeah, righto."

On the other hand, Ms Cuthbert puts that what happened in the interview room, in a series of questions to Constable Ryan at 2-20 and 2-21 of the transcript of the voir dire:
"You said to him that if he didn't nod to the offences that he'd be staying in here, meaning Murgon Watch-house.  What do you say to that?‑‑ No;  You then told him that Clevens had already nodded to the offences and he had been granted bail.  What do you say to that?‑‑ No;  And if that had been said, that would not have been true, would it?‑‑ No, because he was still in custody and it would make it very hard if I was going to arrest Bligh and put him in the watch-house because he would have seen Clevens still in there;  You then went on to explain to my client that the reason Clevens got bail was because he said he did it, that being the lighting of the cars; what do you say to that?‑‑ No, that's what I said to Mr Bligh;  My client then said to you that he didn't want to go to the big house, what do you say to that?‑‑ No;  He then said that he did it, that is, the arsons.  What do you say to that?‑‑ I recall at one point he, as I said, that was after I explained to him about when I walked back into the room about the warrants and that this was the sequence of the conversations from this point on;  You put a number of allegations to him like, 'I know you went to the back of the CTC and lit the car' and then he repeated those back to you.  What do you say to that?‑‑ Sorry, what?  He repeated back to me?;  Yes, in other words, Constable, you told him what to say?‑‑ No, no, because;  And those things that were - that you told him that he repeated back, 'I know you went to CTC and lit the car and you put a block of wood through the window, the back window of the other car' and he repeated this back to you, what do you say to that?‑‑ No, because at that stage we hadn't even been advised how the fire had started in the Clifton's car so I didn't even know myself that a piece of timber had been put through it until - first I heard of it was when Mr Bligh told me about that;  And you then told him that you had statements against him, you had statements from Theo McLeod, Isiah Tapau and Raykce Cobbo and that all of those fellows put him in for it.  What do you say to that?‑‑ No, the only conversations took place were the ones in my notebook, that's it."

Although these allegations were therefore denied by Constable Ryan, there is other evidence against which the proposition that what Mr Bligh did at this stage was simply to repeat back to Ryan what he had been told to say in the context of the preceding inducements offered by Ryan can be evaluated.  This could also be evaluated with reference to Constable Ryan's attitude to compliance with the legislative requirements while speaking to Mr Bligh in the soft interview room.

Constable Ryan's evidence is that, having told Mr Bligh that he would have to go to Court for the warrants, in effect, Mr Bligh, out of the blue and without responding to any question, volunteered "but I didn't do it by myself".  It must have been obvious to Constable Ryan that, in the context of his investigation which he had previously explained to Mr Bligh, that what was being referred to in this statement were the alleged arson offences.  Constable Ryan must at least reasonably have suspected this.

At this stage, section 431(1) of the Act applied. It provides:- "A police officer must, before a relevant person is questioned, caution the person in a way required under the Responsibilities Code." In my view, it is not sufficient that Constable Ryan had cautioned him at the residence where he was located before he returned to the police station. I note it was never suggested that the cautions and warnings were not given at that time. It was also not suggested that he was not given his rights at that time. However, this was done in the context of his being asked to return to the police station for questioning.

Although on the evidence only a relatively short time had passed since then and possibly no more than five to 10 minutes on Constable Ryan's evidence, I consider it was essential that he was cautioned again once this statement was made which suggested that he was prepared to confess to the arsons.

Constable Ryan supports this proposition by cautioning Mr Bligh again a short time later at the beginning of the electronically recorded record of interview.

There was equipment at the station on which any conversation about this could be recorded on video.  This was in addition to the digital recorder that Constable Ryan had available.  There was no suggestion at this stage that it would be necessary to limit the recording of anything that Bligh might say to audio recording because his solicitor would require to discharge his role by phone.  Mr Mortensen, the solicitor, had not been nominated by Mr Bligh at this stage.  In any event, as I have said, the digital recorder was available only a short walk of some 15 seconds away.

Section 436 of the Police Powers and Responsibilities Act requires that where practicable all confessions be electronically recorded. In my view, it was practical to do so at the Murgon Police Station at this time.

I consider at this point Constable Ryan was obliged to terminate the conversation and proceed to hold an electronically recorded record of interview.  He was also obliged to again caution Mr Bligh and remind him of his right to have a friend, relative or lawyer present.  He did none of these things, but continued on his own account to ask, "What do you mean?" and, "Lit what?"

The ease and the necessity to apply the legislative provisions is demonstrated by the fact that after the alleged confession was obtained without those things being done, Constable Ryan said:  "Mate, I will start a tape and go from there, okay?" 

The interview was also conducted without explaining his right to communicate with a friend, relative or lawyer under section 418 of the Police Powers and Responsibilities Act and substantially complying with the terms of section 34 of the Responsibilities Code. This is set out on the card that Ryan carries with him for this purpose. In particular, he did not ask Mr Bligh whether there was anyone he wished to speak to.

This is an obligation upon Constable Ryan whether or not he is

interviewing an aboriginal and Torres Strait islander person,

whether or not the person being interviewed is in custody and

whatever the level of the person's education or, for that

matter, whatever Constable Ryan considers to be the person's

level of understanding or intelligence on the basis of

previous dealings with him or any other sources of

information.

He failed to comply with this.  If he had done so we know from

what happened at the interview that Mr Bligh would have at least

asked for Mr Mortensen who, whatever be the standard of his

approach to giving legal advice in this case, would qualify

also as a support person as defined in schedule 6 of the Act.

Therefore, the interview was conducted in the absence of a

caution as required, an explanation of his other rights, the

absence of a support person and without being recorded when it

was practicable to do so.

It was also conducted without advising Mr Bligh that the

Aboriginal and Torres Strait Islanders Legal Service would be

notified and taking steps to do so as soon as reasonably

practicable.

In my view, despite Ryan's evidence about what he considered

Mr Bligh's level of understanding was compared to other

members of the community, it is decisive on the point of

whether such notification was required under section 420(2) of

the Act that in the electronic record of interview Constable

Ryan confirmed with Mr Bligh after Mr Mortensen had raised it

that Mr Bligh did not want someone from the Aboriginal and

Torres Strait Islanders Legal Service to be present.

It is also my interpretation of section 420(2) that if

Constable Ryan was obliged to notify that legal service the

questioning must be delayed for a reasonable time to notify

it, the Legal Aid organisation, for the purpose of the Act,

at least if a representative of that organisation, whether or

not lawyer or field officer was available.

It is not sufficient that this be done after the record of

interview without giving an opportunity for the interviewee -

in this case Mr Bligh - to speak to a lawyer or field officer

from that Legal Aid organisation.  This is because the purpose

of notifying the organisation is that one of their lawyers or

field officers will attend if available.

I consider that in accordance with this, where a notification is made and a lawyer or field officer is available in accordance with section 420 subsection 2 the interview must be delayed for a reasonable time for that purpose. If it were otherwise an Indigenous person who does not ask for a lawyer will be in a worse position than an Indigenous person who does ask for a lawyer or, in fact, a non Indigenous person who does so. This would be despite the purpose of section 420 of the Act being to provide greater protection for Aboriginal and Torres Straight Islander people. It would also be despite the fact that the section applies where the person has not arranged for a lawyer to be present.

At the time of this initial questioning in the soft interview room, Mr Bligh had not arranged for a lawyer and therefore that section applied. 

Further despite the requirement of section 437(3) that as soon as reasonably practicable after the questioning a person without an electronic recording, Constable Ryan was obliged to make a written record of what was said by Mr Bligh, he did not do so. Although he agrees now that it would have been reasonably practical to do so contemporaneously with the short interview or before he commenced the electronic record of interview. By failing to do so it also prevented him from complying with section 437(4) which required him to read the record to Mr Bligh as soon as practicable after it was made and give him a copy. This is because the record had not been made at this stage.

This would be enough for me to exclude this confession because I am not satisfied that there are special circumstances making it's admission in the interests of justice given the flagrant nature of the breach of this section.  For an officer with five years experience in Murgon where he would have recourse to these provisions regularly in the course of interviewing Indigenous people there has, in my view, been a cutting of corners which involves, at least, a reckless breach of his statutory obligations.

This reckless approach to Mr Bligh's rights also reflects on whether the prosecution have discharged their onus of proof that the interview was voluntary.  Although, in this case, Mr Bligh has also not given evidence that the conversations in the soft interview room were, as put by Ms Cuthbert, and in particular he has not given evidence that he was told what to say by being told, in effect, to repeat what was said by Constable Ryan, it is relevant that during the subsequent electronic record of interview, when Constable Ryan first narrates what he says Mr Bligh told him, this is not precisely as is recorded in the notes that he made subsequently of this purported conversation.

Constable Ryan said, at page 24 of the transcript, "Do you agree that earlier on we were sitting in an interview room and you told me certain things; is that correct?"  Mr Bligh answered, "Yeah, blame it on me so I might as well take the".  Constable Ryan responded, as if trying to cut Mr Bligh off, "All right" and then Bligh continued, "blame for it".  That is an interesting exchange, having regard to Mr Bligh's response when the notes were subsequently prepared and read to him in the record of interview.

Constable Ryan went on to say: "Just so you know, Keith, earlier on in an interview room, Patrick made some admissions to me.  He stated that him and Micky John did attend CTC.  He stated they were both sitting in the car and they were both set fire to the car together and then they said they took off from there and they went to Clifton Motors.  He found a log of - a piece of timber on the - on the side of the road, put it through the window and they both set fire to the car; is that correct?  Is that what you told me, Patrick?"  Mr Bligh responded, "Yes".

Of significance is the fact that when the notes were eventually compiled they did not allege that Mr Bligh had said that he and Mikey John were sitting in the car.  However, this is consistent with the description given by Isiah Tapau.  Despite the incorrect putting of that proposition, Mr Bligh accepted it.  This acceptance of an incorrect proposition as to what he is alleged to have been earlier said reflects upon the level of his real understanding of matters during the course of the interview and his preparedness to generally go along with the questioner.

Further, although once the notes were produced, he accepts that this is what he had told Constable Ryan,  he qualified this in similar ways to that which he had done in saying, as I have just said, "Yeah, blame it on me so I may as well take the blame for it."  These qualifications are to be found at pages 31 and 32.  They include the following: "I said I might as well take the blame for it."

Then after he had been asked, "And then you said to me, 'Me and Mikey John lit it together'; is that correct?", to which Bligh replied, "Yes",  when Mr Mortensen, who was the solicitor nominated by Mr Bligh to be present in the record of interview and is also the person Keith, who was mentioned in the earlier passage that I have referred to, asked him whether he did say this, he responded: "I may as well take the blame so I can get it over and done with."

After agreeing that he had made a number of the other statements recorded in the notebook, Constable Ryan asked: "All right, now, Patrick, what can you tell me about last night?  Did you light the fire at CTC?"  Bligh's response was, "No, but I might as well take the blame for it."  Constable Ryan then said, "Okay, did you light the fire at [indistinct], what you told me earlier in the written record that I just explained to you?  Is that a true account of what happened last night?"  Mr Bligh responded, "Yeah", but then immediately added, "I'm just saying what you said so I can get done for it and get it over and done with."  Constable Ryan responded, "I've never said - I've never explained to you any of that.  That's what you told me.  Is that you?"  Although all of what Bligh said cannot be distinctly heard, at least by me, he did complete his response with the words, "I just said it after."

At page 33, Mr Mortensen sought to clarify these responses by saying, "No, no, I just wanted - I just wanted to clarify [indistinct] where Patrick.  Now, in relation to CTC, now earlier on their interview you said you weren't there.  Now and then later on, you had obviously agreed [indistinct] you'll go along with something.  You might as well [indistinct] something to get it all over and done with or whatever; is that right?" and again Mr Bligh responded, "Yeah".

In circumstances where the defendant's confession, which it is sought to have him adopt in the electronic record of interview, is alleged to have been obtained when no contemporaneous recording was made, whether in a police notebook or electronically, although it was reasonably practical to do so; where the alleged confession was not reduced to writing immediately afterwards, although it was reasonably practicable to do so; where, in the absence of a written record it was not sought to be adopted at the outset of the interview, as Detective Sergeant Bull did with an off the record conversation with Clevens, and, indeed, Constable Ryan did in his initial interview with Mr Clevens; where the defendant's rights at the time of this alleged conversation to a lawyer, a support person and to an Aboriginal and Torres Strait Islander Legal Service notification, have been recklessly disregarded; where when the alleged conversation is first put to the defendant in the record of interview he admits it, although it is put to him in inaccurate terms; where the alleged conversation is accepted by him only on a qualified basis that he may as well take the blame for it and get it over with, and he said he was just saying what Constable Ryan said to get it over and done with; and where I consider he was very tentative in his responses throughout the interview, I consider that the whole atmosphere of this alleged conversation, the subject of the interview in the soft interview room, is so tainted that I cannot be satisfied on the balance of probabilities that this initial confession is voluntary in the sense that the defendant had a free choice whether to speak or remain silent, having regard to the principle stated in Clelland v. The Queen [1982] 151 CLR 1 at 5.

In my view, later cautions and explanations as to rights and the presence of Mr Mortensen, do not remedy this and this lack of a free choice to speak or remain silent permeated the whole of the electronic record of interview which immediately followed it.

For that matter, I cannot exclude that Mr Bligh was spoken to in terms of the nature alleged by Ms Cuthbert such that he was induced to repeat what he was told by Constable Ryan so that both confessions which follow can be said to have been induced by a threat or promise by some person in authority in terms of section 10 of the Criminal Law Amendment Act 1894 which is not detracted from by anything in the Police Responsibilities Act.

As I have indicated, those propositions put by Ms Cuthbert included that if the defendant did not nod to the offences he would be staying in the watch-house, but because Mr Clevens had nodded to them, he had been granted bail.

Accordingly, I find that neither the interview in the soft interview room, nor the following electronically recorded record of interview were, on the balance of probabilities, voluntary.  I would exclude both of those interviews on this basis.  I would also exercise my discretion in the alternative to exclude both interviews on the ground that if they were admitted it would be unfair to the defendant.

In this regard, as was observed in The Queen v. Swaffield [1998] 192 CLR 159 at 189: "The question is not whether the police have acted unfairly. The question is whether it would be unfair to use his statement against him. Unfairness in this sense is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement."

Here, the qualification of the alleged admissions in the electronically recorded record of interview and the acceptance of alleged admissions which were inaccurately put to the defendant in that record of interview, affects their reliability. 

I would also exclude the confessional evidence on the basis of the exercise of the public policy discretion which derives from Bunning v. Cross [1978] 52 ALJR 561.

In this case, as I have found, there has been at least a reckless disregard for the law. It is a case in which the law might easily have been complied with and it is clearly the purpose of the Police Powers and Responsibilities Act to narrowly restrict the police in the exercise of their powers. It has been held that the Act is a code and to emphasise that strict compliance is required, according to section 7 of the Act, it is Parliament's intention that a police officer should comply with the Act in exercising powers and performing responsibilities under it and sanctions apply for contraventions which, at a minimum, can involve a breach of discipline.

In balancing the competing public policy considerations, I take into account the nature of the offences charged and the public interest in persons being convicted of serious indictable offences. 

In the case of Pollard [1992] 176 CLR 177 at 203-205, Deane J said, "The weight to be given to the public interest in conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement."

In this case, as I have indicated, there are reasons to have serious reservations about the reliability and the unequivocalness of the confessional statements or admissions relied upon.

His Honour also said, "If the offence is a serious one it

would ordinarily be quite inappropriate to exclude evidence of

a voluntary confessional statement on public policy grounds.

The critical question in those cases will be whether the

evidence should or should not be excluded on the ground that

its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of law enforcement officers which involved deliberate or reckless breach of statutory obligation imposed by the legislature to regulate police conduct in the interests of protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest ‘the real evil’ at which the discretion to exclude unlawfully obtained evidence is directed.  In such cases the principal considerations of public policy favouring exclusion are at the strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence.”

I so exercise the discretion. 

I also note some other factors that give rise to a concern about the process by which this confessional evidence was obtained.  Although in the electronically recorded record of interview Mr Bligh was cautioned a number of times and Miss Mortensen assisted in this process, this was not done in a way which provides any confidence that he understood it in other than a superficial way.

His general response was the tentative reply, "Yes.", or,

"Yeah."  When Constable Ryan asked Mr Bligh a question to seek

to determine whether he understood the warning he received

conflicting answers. At pages 6 to 7 the following appears:

“CONSTABLE RYAN, "Okay, so if I ask you a question do you have

to answer me.", "BLIGH: Yeah.", "CONSTABLE RYAN: No, you

don't.  Okay, so you [indistinct] so you're clear, you do not

have to talk here today unless you want to.  Are you happy

with that?", "BLIGH: Yeah.", CONSTABLE RYAN: So if I ask you a

question, Patrick, do you have to answer me?"  "BLIGH: No."”

Mr Mortensen attempted to assist at that stage by saying,

"Okay, so you got the right [indistinct] say, ah, that you

don't have to answer any question, any question if - if you

don't want to answer a particular question.  You understand

that?"  Bligh replied, "Yeah."

Mr Mortensen obviously had some reservations about that

because he asked, "Okay, are you sure?". But it is apparent

from the transcript that Constable Ryan proceeded with the

next question or statement without giving an opportunity for

Mr Bligh to respond.

At no time has the - has there been any attempt to comply with the

guideline in the Police Operations Manual at 2.14.11 (iii) to

break down the questions and to ask the defendant to explain

the meaning of the propositions contained in those questions.

Also in the interview at page 5 Mr Mortensen says that

Mr Bligh wanted to know what the allegations are.  This was

despite the fact they had already been explained to him and he

had allegedly confessed to them.  This raises real questions

about the level of his understanding.

Also Constable Ryan gave the warnings, perhaps in accordance

with his natural speech pattern, extremely quickly.  He also

explained the rights at a reasonable pace.  This further

restricted the ability of Mr Bligh to understand the real

meaning of those warnings and statements of rights.

There is also a concern that at times the role of

Mr Mortensen, even if he was well intended, as I'm sure he

was, undercut the right of silence that had been explained to

Mr Bligh. This must have led to some confusion.  For example,

at page 11 Mr Mortensen actually tells him to answer questions

by saying,

"So you know that what you are doing during the day and then

explain what you were doing and who you were with and other

things like that, you know, so take your time, take your time.

You don't have to start at night.  You can start, say, at

lunch time if you want to or - and then go onto lunch time.

Is that okay?"

Now, Mr Mortensen also seemed to help the

police have a question answered at page 20 where he said, "The

question I think we should ask [indistinct] implies that he

was with Michael Clevens [indistinct] I think it needs to

clarify ask a question where did you see Michael last or

[indistinct].", and then at page 22 he almost seems to join in

the cross-examination by saying, "Okay, right.  Well,

obviously somebody's saying that you were there [indistinct]

by the sound of it and, ah, put some kind of piece of timber

through the [indistinct], oh, through a window of a car."

There are also questions about whether Mr Mortensen was in a

position to properly protect Mr Bligh's rights.  At times he

seems to be seeking to gain instructions in the presence of

the police during the interview.  At page 6 he did not know

enough about the allegations so that he had to ask what the

first allegation in time was.  It also does not appear to be

the case that he knew until it was mentioned during the

interview by Constable Ryan that his client was alleged to

have already confessed.

All of those matters raise serious concerns about the level of

understanding of the defendant during the course of this

interview based on the way the questioning proceeded and the

way in which the explanation of his rights and the cautions

made to him were approached.

In those circumstances, I order that the admissions made by

the defendant Patrick Wayne Bligh on 12 November 2011 to Plain

Clothes Constable Joshua Ryan in the interview room at the

Murgon Police Station prior to the commencement of the

recorded interview be excluded from the trial and also the

recorded interview between Patrick Dwayne Bligh and Plain

Clothes Constable Ryan conducted subsequently on 12 November

2011 also at the Murgon Police Station be excluded from the

trial.  That is my ruling.

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