R v Brennan

[1996] QCA 90

IN THE COURT OF APPEAL	[1996] QCA 090
SUPREME COURT OF QUEENSLAND

C.A. No. 191 of 1995

Brisbane

[R. v. Brennan]

THE QUEEN

v.

CAROL ANNE BRENNAN

Appellant

Davies J.A.
McPherson J.A.

Fryberg J.

Judgment delivered 10/04/1996

Judgment of the Court

APPEAL DISMISSED.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - unlawful possession of a dangerous drug - exclusion of tape-recorded confession - s.57(c) Drugs Misuse Act - material of a prejudicial nature before magistrate - magistrate able to approach the evidence with unbiased mind.

Counsel:	Mr. T. Glynn for the appellant Mr. B. Campbell for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	14 August 1995
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 10th day of April 1996

The appellant was convicted in the Magistrate Court at Cairns on 24 April 1995 of unlawful possession of a dangerous drug, methyl amphetamine, on 5 January this year. She has appealed against that conviction on two grounds: the first that the learned Stipendiary Magistrate ought to have determined that he could not conduct the trial after having been informed of irrelevant but highly prejudicial matter; the second that he should not have admitted into evidence two conversations between the appellant and police officers, the first a tape recorded conversation in the house where the drug was found and the second a conversation in the police car on the way from the house to the police station which was not recorded.

On the day in question the police raided the appellant's house. During the course of a search of the house a small quantity of methyl amphetamine was found under a bowl on the appellant's dressing table in her bedroom. Before the search commenced a police officer warned the appellant that she was detained and that she did not have to answer any questions if she did not wish to. She then told the police officer that she wanted to ring a solicitor. He refused to allow her to make a telephone call because he believed, he said, that his investigations would have been hindered. He was then cross- examined with a view to proving, as he readily accepted, that the search of the premises would not have been impeded by allowing the appellant to make a telephone call, even if she made it to some person who was not a solicitor. But that was never the police officer's evidence. He did not say that the search would be impeded in any way if the appellant were allowed to make a telephone call; he said that his further investigations might be impeded if that were allowed. We mention this because the appellant's counsel sought to make the point that, in effect, the police officer admitted that his earlier evidence on this question had been wrong, thus giving rise to the inference that the sole reason for preventing the appellant from making a telephone call was to prevent her obtaining advice not to speak to the police. In any event, during the course of the recorded conversation with the police officer she told him that her solicitor had told her never to speak to them. It was during that conversation that she made admissions upon which she was convicted. Those admissions were that the residence was hers and the room in which the drug was found was her bedroom.

Because the second ground of appeal was, in part, against the admission into
evidence of the tape recorded conversation just referred to, it is convenient to turn to it
first. It relied on principle C of the 1964 Judges' Rules which is in the following terms:

"Every person at any stage of the investigation should be able to

communicate and consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation or the administration of justice by his doing so."

Although the learned Stipendiary Magistrate does not appear to have made a finding as to the credibility of the police officer there does not appear to be any reason to disbelieve his uncontradicted statement that his reason for preventing the appellant from making a phone call was that he was concerned that it would hinder a continuing investigation. However it is unnecessary to consider whether his evidence was sufficient to give rise to the proviso in principle C. It may be assumed that the conversation referred to occurred in breach of that principle because, even on that assumption, it was not established that the learned Magistrate erred in his discretion not to exclude the appellant's admissions. There could be no doubt as to their reliability; they were tape recorded. Nor is there sufficient reason to conclude that the appellant would have conducted herself any differently had she been afforded an opportunity to speak to her solicitor; indeed, as we have said, she referred during the conversation to the fact that she had been told by her solicitor not to speak to the police.

It is unnecessary, in our view, to consider the admissibility of the statements made in the police vehicle. The learned Magistrate did not rely on them because the above admissions were sufficient to convict the appellant because of s.57(c) of the Drugs Misuse Act 1986. The appellant accepted before this Court that, if her argument with respect to the admissibility of the tape recorded confessions was rejected there would be no point in pursuing the argument with respect to the admissions made in the police car.

The first ground of appeal relies on two matters which plainly should not have been before the learned Magistrate and which were of a prejudicial nature. The first concerned a statement by one of the police officers that he said to the appellant:

"But we always find drugs when we come to your place Carol."

The second concerned a Bench charge sheet relating to a subsequent alleged offence of possession of a dangerous drug. On the basis of this material the appellant's solicitor requested that the matter be heard by another magistrate. His application was refused.

It was submitted that because this trial turned upon the application of s.57(c) of the Drugs Misuse Act and consequently very much on the credibility of the appellant who gave evidence, the learned Magistrate, after the above matters had been placed before him, could not have come to consider the appellant's evidence with an unbiased mind. This submission was made to the learned Magistrate and rejected by him. His Worship expressed the view that he was satisfied that he could approach the evidence with an open and unbiased mind and that he was able to make an open and fair decision based on any evidence given before him. No doubt, as the learned Magistrate recognised, it was unfortunate that these matters were put before him. No doubt also, where in such a situation another magistrate is readily available to hear the matter it would be better if that were done so that justice could plainly be seen to be done. However there is no reason to doubt the opinion which the learned Magistrate expressed about his own objectivity. The fact that some other course may have been more desirable does not render the trial unfair or the decision unsafe or unsatisfactory.

The appeal should therefore be dismissed.