R v Braithwaite
[1991] TASSC 138
•27 May 1991
Serial No B24/1991
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Braithwaite [1991] TASSC 138; B24/1991
PARTIES: R
v
BRAITHWAITE, Mark Anthony
FILE NO/S: C288/1990
DELIVERED ON: 27 May 1991
JUDGMENT OF: Zeeman J
Judgment Number: B24/1991
Number of paragraphs: 40
Serial No B 24/1991
List "B"
File No C288/1991
THE QUEEN v MARK ANTHONY BRAITHWAITE
REASONS FOR JUDGMENT ZEEMAN J
(RULING IN THE COURSE OF TRIAL) 27 May 1991
The accused is being tried upon an indictment which charges him with one count of trafficking in a prohibited plant contrary to s47(3)(b) of the Poisons Act 1971. The indictment contains two further counts, one charging Stephen John McTaggart and Graham John Hill with trafficking in a prohibited plant, and the other charging Simon Patrick Andrew Bailey with trafficking in a narcotic substance. I have previously ordered that each count on the indictment be tried separately.
The Crown case, as it appears from the evidence so far led upon the trial, is as follows. On 26 April 1990 McTaggart and Hill travelled from Melbourne to Devonport on the Abel Tasman ferry. They brought with them a Falcon motor car. Upon arrival in Devonport, they travelled to Campbell Town in the Falcon car. At Campbell Town they met the accused and Bailey. The latter were in a Fairlane motor vehicle. Having met in the street, all four persons entered Powell's Hotel and spent some time therein engaged in conversation. All four persons then travelled to a house in Bedford Street, Campbell Town, McTaggart and Hill travelling in the Falcon car and the accused and Bailey travelling in the Fairlane car. Both cars were parked in Bedford Street in the vicinity of the house. There is no direct evidence that any of the men actually entered the house, but such an inference would be open. A short time later, McTaggart emerged and went to the boot of the Falcon. He opened it. He was then seen to walk into the front yard of the house carrying a wheel and tyre in his left hand. About half an hour later, McTaggart again emerged carrying a wheel and tyre in his right hand. He opened the boot and appeared to place the wheel and tyre inside the boot. He returned in the direction of the house empty handed. A further half an hour or so expired before all four men returned to their respective vehicles, entered them and drove off. Upon reaching the Midlands Highway, the vehicle in which McTaggart and Hill were travelling entered the highway and proceeded north. The other vehicle also entered the highway and proceeded south. Some hours later, McTaggart and Hill were intercepted at the Abel Tasman Ferry Terminal at East Devonport. They and the Falcon car were taken to the Devonport police station. Searches were carried out. Two tyres and wheels were found in the boot. Upon one being opened, it was found to contain some four pounds of Indian Hemp.
As became apparent when I took further evidence upon the voir dire, the Crown case is that the accused sold those four pounds of Indian Hemp to either or both of McTaggart and Hill.
I conducted a voir dire to determine the admissibility of certain confessional material which the Crown proposes to lead. That confessional material falls into two categories:
(a)alleged oral admissions made by the accused to police officers to the effect that a sum of money found upon his person when he was apprehended and searched at Brighton later on 26 April 1990 represented the proceeds of the sale by him of marihuana to the persons he had met at Campbell Town;
(b)a form of confession said to have been written by the accused in his own hand.
As to the former, the accused has submitted that I ought to exclude the evidence in the exercise of my discretion. As to the latter, the accused has submitted that it is not admissible in that it has not been shown that the confession was a voluntary confession on the part of the accused. In the alternative, it is submitted that I ought to exclude the document in the exercise of my discretion. Before I deal with these submissions, it is appropriate to examine the evidence led upon the voir dire.
The principal witness called by the Crown on the voir dire was Detective 1/C Constable Whayman. What follows is a summary of the evidence which he gave. At about 3.50pm on 26 April 1990 he was on duty on the Midlands Highway in a position opposite the Brighton Army Camp. He was in the company of a number of other officers, including Detective Sergeant Collidge and Senior Sergeant Petrie. Acting upon information received, a vehicle which the witness described as a Valiant sedan (but which plainly was the Fairlane car referred to by all other witnesses) was intercepted. The occupants were the accused and another male person (who clearly was Bailey). Both persons and the vehicle were searched. Whayman located a bundle of money in the accused's shirt pocket. The accused was asked as to how much money was contained in the bundle, to which he replied that "there should be six grand". Whayman enquired as to the source of the money, to which the accused replied, "I was going to buy a motor bike with it". Whayman counted the money by moving the notes from one hand to the other, calling out a progressive total as he counted it. He found the total to be $6,000.00. He then put the money in his own pocket. Shortly thereafter the accused left the scene with two officers, and Collidge and Whayman conveyed the other man to the Hobart Drug Bureau in Sandy Bay. They arrived there at about 5.00pm. Shortly after his arrival, Whayman noticed that the accused was seated in the Drug Bureau office. Whayman then proceeded to attend to other matters, including preparing, in conjunction with Collidge and other officers, notes of what had transpired at Brighton and a search of the accused's motor vehicle. After having spoken to the other man, Whayman and Collidge went to a room, described as the back room, in the Drug Bureau office. Until then the accused had been "minded" by other Drug Bureau officers. The conversation on the part of Whayman with the accused commenced some time after 7.00pm. Whayman cautioned the accused, and then said:
"Okay Mark you've been waiting awhile but our enquiries reveal that the people you met at Campbell Town have a large amount of marijuana in the car hidden in one of the tyres. Do you know anything about it?"
He said that the accused responded to that by saying:
"Yeah. I took it with me, that's where the six thousand came from."
Whayman then asked: "What do you mean?", to which the accused responded: "I sold it to them but I didn't have anything to do with the speed." Whayman asked: "Do you mean the speed that was found in Simon's pocket?", to which the accused replied: "Yeah."
I interpose to say that those alleged admissions on the part of the accused as to the source of the $6,000.00 and the sale are the oral admissions which the accused submits I should exclude in the exercise of my discretion.
Whayman was asked as to form of the caution. He said that it was in the following form:
"OK Mark I intend to ask you some questions in relation to this matter but before I do I must warn you that you're not obliged to answer any questions unless you wish to. Whatever you do say will be recorded and may be given in evidence."
Subsequent to the accused's oral admissions, Whayman gave the accused what he described as being "several options in relation to interview". When asked to elaborate upon that, he said that he had said to the accused:
"You can take part in a video interview or a typed record of interview, you can make your own statement, write it yourself or you can dictate it to me and I'll write it, or you don't have to say anything at all."
To that the accused responded by saying that he would write his own statement. The accused wrote his own statement. That document is in the following terms:
"Mark Anthony Braithwaite
22 Hale St MOONAH. 25.9.60
this morning i went to cambelltown in my car with a friend of mind. Wen i left Hobart i tolk 3 bags of Dope in the boot. i tolk it there to sell to bloke from Vic.
At Cambell town we meet at pub and went to a house. that were i sold it to them. they gave me the money you found. we then left to come home to hobart the police pulled us up near Briiton. My Friend haf some speed he got of then I got the Dope of a friend I no wont to say who. We had contact from Vic on phone were to meet. the money i got was to pay bills. I had nothing to do with the speed. I have no sold Dope before.
M A Braithwaite
J Whayman
Det 1/C Const 13887.50 PM
26/4/90
S J Collidge T Priest
Det Sgt 1048 Inspector
26/5/90 26/4/90"
It is that document which the accused submits is inadmissible, or alternatively ought to be excluded by me in the exercise of my discretion.
Whayman's evidence was that the accused wrote the statement without any assistance, direction or suggestion as to its contents, save and except that Whayman asked that he write his name, address and age at the commencement. Once the accused had written his statement, Whayman asked him, "Are you happy with what you've written is correct", to which the accused replied, "Yeah, it's right." Whayman enquired whether there was anything else that the accused wished to say about the matter, to which the accused replied, "No". Whayman asked the accused whether he wished to sign the statement "bearing in mind you don't have to unless you wish to", to which the accused replied, "I'll sign it, it's right." The accused thereupon signed the statement, following which it was signed by Collidge and Whayman. The accused was then introduced to Inspector Priest, who was the appropriate officer to carry out the interrogation register procedure. Subsequently the accused was charged and detained.
Collidge and Petrie were called on the voir dire. Collidge substantially corroborated Whayman's evidence, and Petrie did so in relation to the occurrences at Brighton, and in particular as to the amount of money found on the accused's person. Inspector Priest gave evidence that the accused was introduced to him at 8.13pm, when, after enquiry, the accused said that he had no complaints as to the way in which he had been treated by any police officers, acknowledged that the written statement was his statement, and that it was correct. Priest noticed no sign of injury on the accused. In cross–examination of Whayman and Collidge, serious allegations of misconduct were put to them. Their nature will appear from my summary of the accused's evidence upon the voir dire. Suffice it to say, at this stage, that the allegations were denied by the officers.
What follows is a summary of the accused's evidence on the voir dire. On 26 April 1990 he travelled to Campbell Town in the Fairlane in the company of Bailey, intending to meet a person with a view to possibly purchasing a GT Falcon motor car from him. The Fairlane car was then normally in the possession of his then estranged wife, although it may in fact have been owned by the accused's father. The accused took with him the sum of $9,200.00. He explained the source of that money as representing the proceeds of various loans, together with some of his own money. He was expecting to meet McTaggart, a member of a Melbourne motor cycle club. The accused was a member of a Hobart motor cycle club. He had met McTaggart previously in that capacity. There had been some discussions about the possibility of the accused purchasing a Harley Davidson motor cycle. That was the purpose for which he had intended to travel to Campbell Town, although on the morning of 26 April he was told that a GT Falcon rather than a motor cycle was being brought over. He had some interest in purchasing a GT Falcon, thinking that he might be able to purchase it, and then resell it at a profit. When he and Bailey arrived in Campbell Town, they waited for a considerable period, the other persons apparently having been delayed by the late docking of the Abel Tasman ferry. Hill and McTaggart finally arrived and the four men met outside the hotel in Campbell Town. The accused had a brief look at the car before all four men entered the hotel. Drinks were consumed. All four men then left the hotel. McTaggart had told the accused that the car was not an original GT Falcon. A further look at the vehicle by the accused confirmed that in his mind. All four persons then went to the house at Bedford Street where alcohol was consumed. The accused spent some of the time outside the house playing with some dogs. The house was owned by a friend of the accused. He had been there on many earlier occasions. He had authority to go to the house, whether or not the occupant was present. He did not see anyone carry a wheel and tyre into the house. He saw no bags of Indian Hemp. No one gave him any money at the house. He disclaimed all knowledge of Indian Hemp.
Subsequently the accused and Bailey set off on the return journey to Hobart. At Brighton, their vehicle was stopped by police officers. The accused had the sum of $9,200.00 in his top pocket. Whayman removed it and put it into his own pocket. Before doing so, Whayman went through it quickly, but did not count it out. The accused was asked where the money had come from, to which he responded that it was to buy a motor bike. Subsequently he was conveyed to the Drug Bureau office at Magnet Court, where he was taken into a large office and seated in the company of a female officer. He was then spoken to by Collidge and Whayman and was asked where the money had come from. He explained the various sources. A little later he was asked again, and provided the same answer. They gave the impression that they did not believe the accused. He asked if he could ring a solicitor, but this request was refused. They described his explanation of the source of the money as being "bullshit". Collidge and Whayman left the room and other officers came in. They said that they had tested a bag of "this white stuff" (they, at that time, waving a bag around in front of the accused) and said, "Gawd this stuff's really really good, it's heroin". The accused disclaimed all knowledge of it. One officer then said, "This ain't gonna look too good if we are going to go up to your Mum and Dad's place and tear it apart". That officer then professed to have some acquaintance with the accused's father.
Those officers then left and Collidge returned and took the accused into another room. Coffee was provided. Collidge again asked the accused about the money. The accused again tried to explain and Collidge expressed disbelief. The accused was then taken back to the room where he had earlier been. Whayman came in and said: "Righto Mark we have found the wheel up in Devonport it's got dope in it, what do you know about it?", to which the accused replied: "I don't know what you are talking about."
Further reference was then made by an officer to the accused's parents. The accused noted that nearby there was a key rack containing car keys. Whayman went to that and grabbed some keys, waved them around and said:
"Right, we're going to go and tear your fucking parents' place apart if you don't admit something better than what you're trying to say about this money".
The accused again protested his innocence. He started to worry about his parents, and became upset, and started to cry. He was called a wimp and a sook, and one of the officers said: "What, are you scared of Simon Bailey, that fat cunt". Whilst the keys were still being waved about, an officer said: "We're going out there and five or six of us will be going to your parents' place". The accused then said: "All right then. I'll admit – I'll do what you want me to do."
He said that he was then taken to a small room further towards the back of the Drug Bureau office and sat down to write a statement. His evidence then proceeded as follows:
"MR HODGMAN: Just on that, I will interrupt because I want you to keep going please. Did any of them tell you you didn't have to say anything unless you wanted to?
ANo, Your Honour. So I sat down at this table in this little room and it's – the back door's behind me and it's just a small room and there's a table in front and a big wall there like and Whayman was on the left of me and Collidge was on the right of me and I just sat down to start writing this statement out, and then I'd written down my name and all that and then I sort of paused and I said, 'Well, how do I start?', and they said, 'Well, what happened this morning?', so I wrote I left to go to Campbell Town and this and that and then I got to the part where they said, 'How much dope did you have to take up there?', and I said, 'One bag', and they said, 'No, that's not right', I said, 'Two bags then', and they said, 'No, no', I said, 'Three', and then they said, 'That'll do', and it was about the point of time when Constable Whayman smacked me around the – very hard with his open hand on that side of my face while I was sitting in this position like I am now and that shook me up very bad.
QHow bad was that hit?
AI was that bad I couldn't even think at all. I couldn't even spell the words, they were helping me to try and – helping me what word to write next – and I tried to stop writing and they started going mad at me again and carrying on and I writ a bit more and then while I was got to that part of the statement Collidge had come around from behind and just kicked the chair real hard and I had gone like this and I never came out of the chair but you know it certainly gave me a really big jolt and so I sort of kept writing, what they wanted me to write, telling me what to say, and then at the end of the statement I said, 'I don't want to sign this', and they said, 'What's the fucking point writing this, having this here, and not going to sign it', and I said, 'Well I don't want to sign it', and then he scruffed me, started getting –
HIS HONOUR: And who scruffed you?
ACCUSED:Mr Collidge, and shook me and said, 'Sign this statement', so I just signed it then and that was it, that was it there. Then I sat down again where I originally was sitting in this big room, back in there, and about ten minutes later they come out and got me and took me in to see Mr Priest, who was the man in the room, and he explained to me what sort of goes on and that and he asked me did they touch me and I said 'No'. The reason I said that because I thought now if I say what they done to me like I honestly thought that I'd be back in the rooms with them again, so I thought I will just sign these things, just to get out of there, so I –
MR HODGMAN (Resuming): Did they say, or either of them say anything to you about what would happen if you made a statement or what was going to happen to you compared to the others?
ASay that again please?
QOnly in relation to the others, did they mention Mr Bailey or the others, what was going to happen to them, what was going to happen to you?
AOh yes, at the end of seeing that Mr Priest they were taking me to a, up to Hobart, to the finger–printing room and all that.
HIS HONOUR: This is Collidge and Whayman?
ACCUSED:Yes. And Mr Collidge said to me, he said, 'If you stick to this statement' he said, 'and what I can gather you have never been in trouble with drugs before', he said, 'you will be laughing', he said, 'you won't go to gaol for this because it is your first time', but he said, 'we're going to get the other three bas–––' well I think he said 'cunts' actually.
HIS HONOUR: Don't worry about that, you just relate what was said.
ACCUSED:And then that was about it your Honour, they took me into town and dropped me off and that was the last I saw of anyone there."
The accused called a number of witnesses on the voir dire, who, to some extent, corroborated his evidence as to the source of his money, his possession of it prior to going to Campbell Town on 26 April and the presence of an injury in the region of his left eye. It is appropriate to note that the wife and father of the accused had a motive for supporting the accused in that each had an interest in the Fairlane car which had been seized by the police and which is to be made the subject of an application for forfeiture if the accused is convicted. The accused denied having made any admissions that he had sold cannabis or that the moneys found on his person represented he proceeds of such sale. The accused denied that he had ever been warned by any police officer that he was not obliged to say anything or make any statement.
It is apparent that a number of important conflicts arise upon the evidence. The accused's version of relevant events stands in stark contrast to that of police officers, and in particular Whayman and Collidge, in particular as to the sum of money found upon the accused's person and the course of the interview procedure at the Drug Bureau office. Having seen and heard the witnesses, I should say at once that I am far from satisfied that the evidence of Whayman and Collidge on the one hand, and the evidence of the accused on the other hand, was entirely truthful. I will make further specific observations on the evidence of those police officers. In so far as the accused is concerned, I do not believe his protestations that he knew nothing of any cannabis, as distinct from his assertion that he was not involved in the crime with which he stands charged, as to which I need express no view.
It is appropriate that I first deal with the alleged written confession. That document is only admissible against the accused if it amounts to a voluntary confession in the sense of having been "made in the exercise of a free choice to speak or be silent" (per the Court in R v Lee (1950) 82 CLR 133 at p149). I may not admit the document into evidence unless I am affirmatively satisfied upon the balance of probabilities that it was voluntary in that sense.
The accused's alleged statement admits to having taken three bags of "dope" in the boot of his car to Campbell Town, and to having sold that at a house at Campbell Town for the money found upon him. I observe that eight bags of Indian Hemp were found inside the tyre, although there may be many possible explanations for that. The vehicle in which McTaggart and Hill travelled to Campbell Town was kept under observation by one or other of police officers taking part in a surveillance operation for the whole of the time commencing with their arrival in Campbell Town and ending with their departure. The amount of Indian Hemp involved in this case is substantial. It is in evidence. For a delivery of that Indian Hemp to have been effected upon the version recorded in the accused's statement, it was necessary for it to have been transferred from the boot of the accused's vehicle to the tyre which was later found in McTaggart and Hill's vehicle and which, when opened, was found to contain Indian Hemp. On the Crown case, a tyre was removed from that vehicle and taken into the house in Bedford Street, and later returned to the vehicle. That provided an opportunity for Indian Hemp to be secreted within that tyre in the privacy of the house. However, there is nothing in the Crown case indicating that the Indian Hemp was taken into the house. It is plain that if that Indian Hemp had been removed from the boot of the accused's car and taken into the house at any time after McTaggart and Hill arrived in Campbell Town, then it would have been observed by one or more police officers taking part in the surveillance operation. No evidence as to any such observation was given by any of the officers. The volume of Indian Hemp was such that it is unlikely to have been secreted about the person of the accused and/or Bailey. I do not overlook the possibility that the accused went to the house in Bedford Street prior to the arrival of McTaggart and Hill and at that time unloaded the Indian Hemp and placed it in the house pending the meeting with the men from Melbourne, although there was no apparent reason for doing that. It was not suggested to the accused in cross–examination that he had done so. It is unlikely that the Indian Hemp was in the boot of the accused's vehicle when he was observed by police officers arriving in Bedford Street. There are other possible explanations, such as that Hill and McTaggart had brought the Indian Hemp from Melbourne and unsuccessfully offered it for sale to the accused, or Bailey, or to both of them, or that the Indian Hemp was already in the house in Bedford Street before the four men arrived having been placed there by some person at some earlier time. I consider the version recorded in the accused's written statement to be one which Whayman and Collidge probably considered to be true. They were aware of the location of the Indian Hemp within the tyre at Devonport. They had found a substantial sum of money on the accused's person. They were aware that the accused had met McTaggart and Hill in Campbell Town. It would be natural for them to conclude from that that it was the accused who had brought the Indian Hemp to Campbell Town and sold it to McTaggart and Hill. That state of mind on the part of Whayman and Collidge made it possible for one or other or both of them to have dictated the statement. On the other hand the admissions contained in the statement may not have been true. Rather surprisingly the Crown has called no evidence of any scientific examination of the Fairlane and in particular of the boot.
The circumstances in which the accused came to be writing his own statement bear close attention. The Drug Bureau office is situated in the vicinity of the Hobart CIB office. That latter office is equipped with facilities for the recording of interviews on videotape. The facilities can be made available at any time of the day or night. When asked in cross–examination why at least the statement was not read back to the accused with such a reading back being video recorded, Whayman said, "Because the accused indicated that he didn't wish to take part in a video situation". That indication was said to have been given by the exercise by the accused of an option to make a written statement to which I have already referred. That was no such indication at all. By choosing one of a number of options offered to him the accused was not declining to proceed with the other options. In any event no invitation was extended to the accused to have the statement read back to him whilst the proceedings were video recorded.
I found Whayman to be less than frank in his evidence as to how the accused came to write his own statement and as to why he did not proceed with a video recorded play back of the statement. To say (as he did) that the accused had expressed a desire not to participate in a video recorded interview is quite wrong. If Whayman explained the accused's options to him in the way he described in evidence (and I am not satisfied that he did), then that course in itself is objectionable. Whilst I am not presently applying the evidentiary test therein referred to, I fully share the views expressed by the majority in McKinney v R (1991) 98 ALR 577 at p581, that:
"The contest established by a challenge to police evidence of confessional statements allegedly made by an accused while in police custody is not one that is evenly balanced. A heavy practical burden is involved in raising a reasonable doubt as to the truthfulness of police evidence of confessional statements, for, in the circumstances which invariably attend that evidence, a reasonable doubt entails that there be a reasonable possibility that police witnesses perjured themselves and conspired to that end."
It is to overcome those difficulties and to provide a reliable way of proving what has transpired between police officers and an accused person that significant attention has been given in recent times to making available accurate means of audio–visual recording. Such means were available to Whayman. The very difficulties sought to be overcome by the use of audio–visual recording of interviews are created by the adoption of a procedure whereby options are provided in the manner described by Whayman. Obviously the most reliable way in which an alleged confession by an accused person can be sought to be proved before a jury is by an audio–visual record of the conversation during the course of which it is said the confession is made. Where the facilities to make such a record exist, the first invitation to be extended to an accused person ought to be to participate in an interview so recorded. At least that ought to be the case when a police officer is investigating a serious crime as the present. If those facilities are not available, then a record of interview in the traditional form ought to be made. An alternative, although less desirable course, is to conduct an interview recorded in the latter manner which is then read back whilst the proceedings are recorded on video. As will appear when I deal with the alleged oral confession, Whayman claims at the outset to have given the accused a warning indicative of intending to conduct an interview which was to be recorded in writing without then offering the option of a video recorded interview, although as it transpired he did not prepare any record of that interview which was shown to the accused. I consider that procedures of the type described by Whayman as being inappropriate. They give rise to my suspicion that he was not anxious to conduct a video recorded interview as that would record material which he did not wish to be recorded. I did not find Whayman an impressive witness when he sought to explain his reasons for adopting the procedures which he said he adopted.
The accused's written statement refers to him having obtained the "Dope" from a friend, but expresses an unwillingness to disclose the identity of that friend. On Whayman's evidence, all the accused had been asked was to make "his own statement". On Whayman's evidence, it was left entirely to the accused's discretion as to what was contained in that statement. On Whayman's evidence, he did not ever ask the accused as to where he obtained the Indian Hemp. I do not accept that evidence. It seems incredible that an experienced drug squad officer would not enquire from a person whom he believes to have sold a very large quantity of Indian Hemp as to that person's source of supply. It might be assumed that the source of supply of the Indian Hemp would be a matter of considerable interest to Whayman. In fact, it might be thought that he would be acting in dereliction of his duty if he did not make enquiry. The suggestion that the accused, without being asked, declined to specify his source of supply is unlikely. For Whayman not to have further pressed the matter is even more unlikely.
I do not accept the evidence of Whayman and Collidge that the written statement was prepared by the accused without prompting or assistance from any police officer.
The ultimate question which I need to answer is whether I am affirmatively satisfied, upon the balance of probabilities, that the statement was made voluntarily. If the accused's version of the course of proceedings at the Drug Bureau office leading up to and during the course of the making of the statement are correct, then plainly this statement was not voluntary. The adverse conclusions I have come to as to certain aspects of the evidence of Whayman and Collidge is such that I do not have a sufficient degree of confidence in their evidence to enable me to conclude that I am affirmatively satisfied, to the requisite degree, of the voluntary nature of the written statement. I need not go further than that. It follows that the statement is not admissible.
I now turn to the alleged oral admissions. The accused, of course, says that he made no such admissions. That is not a matter for me, but a matter for the jury, if, in the exercise of my discretion, I decline to exclude the evidence.
The accused seeks to have this evidence excluded in the exercise of my discretion, primarily upon the basis that no warning was given to him prior to the time when it is said he made the admissions. In the circumstances of this case, the form of warning which Whayman said he gave to the accused was incongruous. It was a form appropriate to an interview intended to be recorded by way of a formal record of interview. Immediately after the warning was given, Whayman claims that he asked several questions which immediately led to incriminating admissions. He did not mention having made any form of record. When Collidge was cross–examined, he said that Whayman was making notes during the course of the discussions with the accused. Those notes were produced, and were in the following terms:
"JMWCaution. OK Mark you're waiting a while but our enquiries reveal that the people you met at CT have a large amount of Marihuana in their car hidden in 1 of the tyres Do you know anything about it
MB Yeah I took it up with me and thats where the $6,000 came from
JMW What do you mean.
MB I sold it to them but I didn't have anything to do with the speed.
JMW Do you mean that the speed that was found in Simons pocket
MB Yeah
JMW Options Re interview to MB
MB elects statement,
JMW Are you happy with what you've written is correct.
MB Yeah its right.
JMW Is there anything else you wish to say about the matter
MB No
MB(Sic) Do you wish to sign the statement you have written bearing in mind you don't have to unless you want to.
MB I'll sign it its right.
S J Collidge J Whayman Det 1/C1388
Det Sgt 1048 26/4/90"
Collidge said that although the notes were made in the presence of the accused, they were not shown to him. He described them as being "purely notes to be used for the preparation of evidence." If Collidge was being truthful when he said that those notes were taken during the course of discussion with the accused (as to which I entertain considerable doubt), then plainly those notes should have been shown to the accused at the end of his discussions with the officers. To suggest that their only function was to assist in the preparation of an ultimate proof of evidence displays a misunderstanding of the law. The status of the notes is no different from a form of record of interview prepared in conventional form, but which is not signed by the person being interviewed. They became admissible under s81B of the Evidence Act 1910. They should have been disclosed by the Crown to the accused. It was apparent that Crown counsel had not been told of their existence prior to the commencement of the trial. The incongruous nature of the warning, the adverse view which I have formed as to the credit of Wheyman and Collidge in connection with the written statement made by the accused and the way in which the alleged interview resulting in the admissions was conducted lead me to the view that I should accept the evidence of the accused that no warning was given to the accused. I so find.
At the time that the accused was allegedly questioned and made the oral admissions, he was in custody in the sense that he had been taken to the Drug Bureau office by police officers and had been kept there in the sense of having been "minded" by various officers. Whilst, as a matter of strict law, he might have been entitled to leave at any time, so far as he was concerned, he was required to remain at the Drug Bureau. At the same time, Whayman had evidence which would have afforded him reasonable grounds for suspecting that the accused had committed the crime of selling Indian Hemp to Hill and McTaggart. Consistently with the Judges' Rules, the circumstances were thus so as to make it appropriate that the accused be given a warning, in terms that he was not obliged to say anything but that what he did say would be written down and might be used in evidence. Because there has been a breach of the Judges' Rules it does not follow that the evidence obtained must be excluded (Walker v Viney [1965] Tas SR 96 at p97). At the same time, it must be kept in mind that the purpose of those Rules is to lay down procedures for the interview of suspected persons in a manner which is consistent with the basic common law rights of such persons to say nothing when sought to be interviewed by police officers. Such breaches ought not to be excused as a matter of course. I would express my agreement with what Everett J. said in R v Whitford [1980] Tas R 98 at p100:
"Nevertheless, where there is a clear breach of an unambiguous provision in the Judges' Rules, it is the duty of the trial judge to exercise his discretion and, in exercising it, to bear in mind that to admit inculpatory evidence in the face of a clear breach of the Judges' Rules is largely to stultify the purpose of the Rules."
I have concluded that I should exercise my discretion and exclude this evidence for the following reasons:
(a)The absence of a warning which was appropriate in the circumstances.
(b)The earlier expressions of disbelief at the accused's exculpatory explanations for the source of his money (which I am satisfied occurred when the accused was first questioned).
(c)His detention at the Drug Bureau for a period in excess of 1½ hours, during which, as I find, he was denied access to a solicitor.
I do not find it necessary to make any finding as to the amount of money which was taken from the person of the accused and I express no view on that matter. In the result, none of the confessional material will be permitted to go to the jury.
I record that these reasons were not published until after the conclusion of the trial.
The Crown case has now concluded and the accused has submitted that he has no case to answer. The state of the evidence at the conclusion of the Crown case is that in addition to the evidence before the jury at the time that the objection to the admission into evidence of the confessional material was taken, there is the evidence of the interception of the accused's motor vehicle at Brighton and of what occurred at Brighton and thereafter (other than the evidence of the confessions) which was earlier given on the voir dire and which I summarized in my ruling on the question of admissibility.
It seems to me that upon the Crown case, three hypotheses might be said to be reasonably open:
(a)That the accused took the Indian Hemp from Hobart to Campbell Town and that he there sold it to Hill and/or McTaggart.
(b)That Hill and McTaggart brought the Indian Hemp to Campbell Town intending to sell it to the accused, that no transaction was effected, and that they took the Indian Hemp away with them.
(c)That the Indian Hemp was at the house in Bedford Street, Campbell Town prior to any of the four men arriving there, and that a transaction by way of a sale from the accused to Hill and/or McTaggart was there effected.
Other hypotheses might also be said to be open, including hypotheses involving Bailey rather than the accused, or Bailey and the accused jointly, as distinct from the accused solely. However, it might be said that only three hypotheses are open as to where the Indian Hemp came from, namely that it came to Campbell Town in the boot of the accused's vehicle, or in the boot of Hill and McTaggart's vehicle, or that it was in the house prior to the men arriving. For the reasons given during the course of my ruling on the admissibility of evidence, it seems to me that it is less likely that the accused brought the Indian Hemp in his vehicle than that it was brought there by McTaggart and Hill, or that it was already at the house. None of the three hypotheses as to how the Indian Hemp came to be at the house in Bedford Street requires any rejection of any evidence given by Crown witnesses for acceptance, except that in so far as the hypothesis that the accused brought the Indian Hemp to Campbell Town in the boot of his vehicle, it would require a singular act of non–observance on the part of the police officers taking part in the reconnaissance operation in not seeing that Indian Hemp being taken from the boot to the house. The presence of a large sum of money on the accused's person is as consistent with a sale as an unsuccessful attempt to purchase. The evidence suggests that the quantity of Indian Hemp found in Hill and McTaggart's vehicle had a street value very much in excess of the amount of money which, on the Crown case, was being carried by the accused. It might be said that that quantity of money and that evidence as to value would be consistent with an attempt by the accused to purchase the Indian Hemp for the money which he had and McTaggart and/or Hill rejecting the offer.
The question which I need to determine is "whether, on the evidence as it stands, the defendant could lawfully be convicted" (May v O'Sullivan (1955) 92 CLR 654 at p658).
The whole of the Crown case is circumstantial in nature. The question which I need to consider is whether, assuming that the jury accept the whole of the evidence led by the Crown (ie putting the Crown case at its highest), the jury could lawfully convict the accused. It would not be open to the jury to convict unless they were satisfied that upon that evidence there was no reasonable explanation consistent with the accused's innocence (per Dawson J in Shepherd v R (1990) 97 ALR 161 at p170). In my view, it would be open to the jury to be so satisfied even if they were to reject as a fact the proposition that the accused had brought the Indian Hemp to the house in Bedford Street in his motor vehicle of which there is no direct evidence and which would appear to be unlikely if the evidence of the observations made at Campbell Town by police officers is accurate and complete. The jury would be entitled to infer that a sale of the Indian Hemp had been effected by the accused to Hill and/or McTaggart and that the moneys found on his person were the proceeds of that sale. The facts of the meeting, the finding of the Indian Hemp and the finding of the money are facts which, when taken together and without further explanation, might reasonably lead to a conclusion in the minds of the members of the jury that a sale had been effected by the accused. Upon the present state of the evidence, such a conclusion would be a permissible inference and would not amount to conjecture.
Accordingly, I rule that the accused has a case to answer.