R v Christopher John Dignan
[2024] QSCPR 23
•5 September 2024
SUPREME COURT OF QUEENSLAND
CITATION: R v Christopher John Dignan [2024] QSCPR 23 THE KING
v
CHRISTOPHER JOHN DIGNAN(applicant)
ANDATTORNEY-GENERAL OF QUEENSLAND (intervenor) FILE NO/S: Indictment number 171 of 2024 DIVISION: Trial Division PROCEEDING: Application for a ruling pursuant to s 590AA Criminal Code
(Qld)ORIGINATING Supreme Court of Queensland at Brisbane COURT: DELIVERED ON: 5 September 2024 DELIVERED AT: Brisbane HEARING DATE: 6 and 22 August 2024 JUDGE: Copley J ORDER: The application is refused. CATCHWORDS:
CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – VOLUNTARY STATEMENTS –
JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where the police executed a search warrant at the applicant’s residence – where during the search warrant
police asked for the applicant’s mobile phone passcode which he provided – where the applicant was charged with trafficking after an examination of the mobile phone was conducted –
where the applicant filed an application to exclude the evidence about the passcode pursuant to s 590AA of the
Criminal Code (Qld) – whether the passcode was provided voluntarily – whether unfair to permit evidence about the passcode to be lead –whether the police acted unlawfully in
obtaining the passcode and if so whether the evidence should be excluded in the exercise of the public policy discretion – whether the police breached s 58(1)(a) of the Human Rights
Act 2019 (Qld)Criminal Code (Qld), s 590AA(2)
Human Rights Act 2019 (Qld), ss 25(a), 58(1)(a)
Police Powers and Responsibilities Act 2000 (Qld), ss 151,158(1), 418 Police Powers and Responsibilities Regulation 2012 (Qld),
Sch 9 s 23Cleland v The Queen (1982) 151 CLR 1
Director of Public Prosecutions v Kaba (2014) 44 VR 526
MacPherson v The Queen (1981) 147 CLR 512
McDermott v The King (1948) 76 CLR 501
R v Ireland (1970) 126 CLR 321
R v Swaffield (1998) 192 CLR 159COUNSEL:
C Tessman for the applicant C Ahern for the prosecution K J E Blore for the intervenor
SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions for the prosecution
Crown Solicitor for the intervenor
An indictment has been presented in this Court charging the applicant with a count of carrying on the business of unlawfully trafficking in the dangerous drugs cocaine and cannabis. He is alleged to have trafficked in those drugs between 15 October 2022 and 21 May 2023 at Nerang and elsewhere. He is charged on the same indictment with other offences against the Drugs Misuse Act 1986 (Qld), all of which are alleged to have occurred on 21 May 2023 at Nerang. The significance of this date is that it
was the date on which police officers went to the applicant’s residence at Nerang.
They were then in possession of a search warrant issued pursuant to s 151 of the Police Powers and Responsibilities Act 2000 (Qld) and a document headed Statement
To Occupier (Summary of the Occupier’s Rights and Obligations Under a Search
Warrant). The search warrant did not contain an order requiring a person to give access information in relation to a digital device.
Pursuant to s 590AA(2) of the Criminal Code (Qld) the applicant has applied for a ruling that evidence obtained from the examination of his OPPO mobile phone, designated exhibit number P2300168032, be excluded from his trial.
An application for a ruling excluding evidence of questions asked by police officers and responses made by the applicant on 21 May 2023 concerning the phone or arising from an examination of it was abandoned at the commencement of this hearing. It was abandoned because the prosecution had indicated to the defence that the count of trafficking depended on the contents found in the phone in consequence of the applicant providing the passcode to the phone.
The ruling sought only concerns the following evidence. During the course of the
search of the applicant’s residence Senior Constable Everett asked, “And what’s the
passcode for this phone?” The applicant replied, “1368888.”
The applicant contends that this evidence should be excluded because:
(a)
the passcode was not provided voluntarily hence it was inadmissible; however, if it was provided voluntarily then;
(b)
the passcode was unfairly obtained and so the evidence should be excluded in the exercise of the discretion to exclude evidence unfairly obtained; and/or
(c)
the police acted unlawfully in obtaining the passcode and so the evidence should be excluded in the exercise of the public policy discretion.
For the reasons which follow I refuse the application to exclude this evidence from the trial.
Was the confessional statement voluntary?
For the purposes of considering this issue I proceed on the basis that the applicant’s
answer at [4] above amounted to a confession.
The applicant did not contend that the passcode was obtained by threats or inducements.[1] Rather, the contention was that the prosecution could not establish that he provided the passcode voluntarily because it could not establish that he provided it in the free exercise of a choice to speak or be silent. Expressed slightly differently, he argued that it could not be shown that he appreciated that he had the option not to answer the question (though he characterised it as a command or a direction).
[1] This case does not engage the Criminal Law Amendment Act 1894, s 10.
The applicant developed his argument as follows. The cautions the police officers provided in the context of the carrying out of a search of the house pursuant to a warrant did not make it sufficiently clear to the applicant, about whom there was no evidence that he was a lawyer or that he had previously been cautioned by police, that he had a choice about whether to provide his passcode. At the commencement of the search he was told he was detained and told that this meant he was not free to move around. He was told that if he obstructed the police in any way it might result in him being arrested. Informing the applicant of his right to not answer questions in the context of providing him with a copy of the search warrant and Statement to Occupier and informing him that the Statement outlined his role and responsibilities under the warrant tended to emphasise obligations that he owed, rather than rights he could or could not exercise. Later, as the police accompanied him into the yard in order for a police dog to be set to work in a search of the house, he was asked if he understood not just his rights but also his obligations. It was argued that he did not demonstrate a particularly advanced level of understanding of the warning or caution he was given about his right not to answer questions. About 20 minutes before he was asked about the passcode a police officer informed him that his phone was going to be seized and that he might care to obtain some phone numbers from his phone. It was submitted that this created the impression that the police were entitled to have access to what was in the phone and that the applicant had no choice but to allow them access. In the minutes preceding the question about the passcode the applicant was not reminded
of his right to silence. The language that the police officer used – “And what’s the passcode for this phone?” – was not distinguishable from a direction or an indication
of an obligation to provide it. A person might interpret it as something he or she was
obliged to provide.
The prosecution relied on the applicant’s demeanour, his responses to questions and in some instances his refusal to respond to questions to show that the applicant’s
provision of the passcode was made voluntarily, in the exercise of a free choice to speak or to be silent. The prosecution also relied on some answers the applicant made after he provided the passcode. To this though the applicant submitted that those answers had no relevance to the issue whether the passcode was provided voluntarily. It is not necessary to determine whether the answers provided after the passcode was revealed are relevant or not to the issue of voluntariness because having regard to the matters set out below I am satisfied on the balance of probabilities that the applicant provided the passcode in the exercise of a free choice to speak or be silent. In other words, he provided the passcode voluntarily.
The burden lies on the prosecution to establish on the balance of probabilities that an alleged confession was voluntary.[2]
[2] MacPherson v The Queen (1981) 147 CLR 512 at 519; Cleland v The Queen (1982) 151 CLR 1 at 19
In McDermott v The King, Dixon J said:[3]
“At common law a confessional statement made out of court by an
accused person may not be admitted in evidence against him upon his trial for the crime to which it relates, unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does
not matter by what means he has been overborne.”
[3] (1948) 76 CLR 501 at 511.
All of the applicant’s interactions with the police prior to him providing the passcode
were recorded on body-worn cameras belonging to Senior Constable Everett and Detective Sergeant Strain. The recordings contained both footage and sound. The quality of the recordings was reasonable. Apart from some small portions that neither side attributed any great significance to, the conversation between the police and the applicant was audible. The footage enabled an impression to be formed about the
applicant’s demeanour.
It is relevant to note at this point that there were two other persons present when the police arrived at the house, Kaylah Bunting and a boy of 11 years of age. Ms Bunting and the applicant were his parents. Ms Bunting and their son lived in the same house as the applicant, though she was no longer in an intimate relationship with the applicant.
The police met Ms Bunting on the driveway leading to the house. She was asked to accompany the police inside the house. The police, Ms Bunting and the applicant assembled in the loungeroom. The following things were said:
Everett: “… I have here a search warrant issued under the Police Powers and Responsibilities Act to search the premises for um dangerous drugs, namely cocaine. I’ll give you copies (inaudible). Ah, by virtue of that Act, I’ll now detain you all, so that means you are not free to move around.” Applicant: “Yep.” … Everett: “So, like I said before, you are detained. It means you’re not free to move around or anything like that. If you do obstruct us in any way, it may result in you being arrested. So, in the event we should find anything, I will give you your rights and cautions now. So, you both have the right to remain silent. This
means you do not have to say anything …” Applicant: “Yep.” Everett: “Answer any questions or make a statement unless you wish to do so. However, if you do say something or make a statement, it may later be used as evidence in
court. Do you understand that?” Applicant: “Yep.” Everett: “Would you mind telling me what that means to you, Chris?” Applicant: “I’m not saying anything (inaudible).” Bunting: “Just gonna sit here (inaudible).” Applicant: “Yep.” Everett: “You both, but you both understand that warning?” Applicant: (inaudible) Everett: “You also have the right to telephone or speak to a friend or relative, to inform that friend or relative where you are, and to arrange or attempt to arrange
…” Applicant: “Yep.” Everett: “For that friend or relative to be present during questioning. Is there a friend or relative that you would like to contact?” Applicant: “Nuh.” Everett: “You also have the right to telephone um, a lawyer of your choice …” Applicant: “Yeah.” Everett: “To inform the lawyer of where you are, and to arrange or attempt to arrange for that lawyer to be present during questioning.” Applicant: “Nuh.” Everett: “Is there a lawyer that you would like to contact?” Applicant: “Mm, mm.” Everett: “No …” … Everett: “… I’ll give you a copy of the search warrant, and this is also a statement to the occupier which outlines your roles …” Applicant: “Yep.” Everett: “And responsibilities under that search warrant …”
When police execute a search warrant for a place that is occupied they must, if the occupier is present, give him or her a copy of the search warrant and a copy of a
statement in the approved form summarising the occupier’s rights and obligations
under the warrant.[4]
[4] Police Powers and Responsibilities Act, s 158(1).
A police officer said that the police dog was trained to detect drugs and cash. The applicant was asked if he wanted to declare any large sums of cash. He said he had a little bit of cash. Asked how much, he said about $5,000. When asked whereabouts it was, he said it was in his room. When asked if there were any dangerous drugs he
wanted to declare, the applicant said, “Nuh”, but then added, “There’s a bit of weed,
but …”. When asked if he was happy to show the police where the cannabis was, the
applicant said, “Yeah”. A little while later the police asked if there were any
dangerous drugs other than the cannabis. He said, “No. Is that a dangerous drug?” Without being asked where he obtained it from, he said, “I can get it off Facebook
these days”. He was asked if he wanted to show the police where the cannabis was,
he directed their attention to an esky.
Everett then asked the applicant to go with her into the yard. There then followed this exchange:
Everett: “You understand your rights and obligations, though, that I explained to you before? Your warnings, that you don’t have to say anything unless you wish to do so, and you can contact those people if you like …” Applicant: “(inaudible) for some reason.” Everett: “Just …” … (inaudible) Applicant: “You’re making (inaudible) a little bit stupid.” Everett: “No I’m just making sure that you understand …” Applicant: “Yeah, no you’ve told me, I understand.” Everett: “That warning.” Applicant: “Yeah.”
The applicant then had a discussion with Strain about his impending move from the house and about his concern for his fish and turtles. Ms Bunting went to the garage area with Everett. When they returned to where the applicant and Strain were at the back of the house the applicant and Strain were engaged in a discussion about some topics that Strain said were the subject of federal regulation. That conversation led to the following:
Strain: “Look, you don’t have to tell us nothin’.” Applicant: “No, I would …” Strain: “You don’t have to …” Applicant: “I’d never tell ya, I’m not dobbin’ on anyone.” Strain: “But, obviously, as a police officer …” Applicant: “Yeah.” Strain: “I’ve got certain responsibilities, and I hear that and I’ve gone, well, I, I need to ask some more questions because that’s not …” Applicant: “Well, maybe if it was ice or something, I’d probably tell youse somebody who was doing it…”
Some minutes later Everett said that objects had been located – just by looking – “that I would like to talk to you about, Chris”. The applicant said, “Yeah”. She went on,
“If you did wanna have a chat to me about it”. The discussion then returned to the
turtles when Strain asked if the turtles were registered with the council. The applicant
said they were not registered. He said, “I’ll tell you how I got them”. He then went
on to explain his acquisition of the turtles. Everett said that they found a clipseal bag
with some white powder residue in it inside the applicant’s wallet. She asked what
was in the clip seal bag. He responded, “It would have been a bit of coke”.
Some minutes later, the applicant asked Everett, “What’s Kaylah [Ms Bunting] gotta
do with anything?” When informed that Ms Bunting would be issued a notice in
relation to cannabis, the applicant said, “It’s not hers”. Everett replied that she had
said it was hers. The applicant said that it was not, that she had a brain injury, had
short-term memory loss, did not even know her son’s name sometimes and was
“NDIS full on”.
Everett and Strain then had a conversation that may have been out of the applicant’s
hearing. The conversation concerned seizing a phone and asking for the PIN code. At about 3.01 pm Strain told the applicant that his phone would be retained for up to 30 days.
At about 3.03 pm Everett questioned Ms Bunting about cannabis. The applicant said
that she had a brain injury and “now you’re working her over”. He went on to say
that she could say anything, that she had a bad short-term memory. There was then
the following:
Strain: “We have to ask those questions because, look …” Applicant: “Yeah, but you also told me that I didn’t have to say anything, but she’s a mental, she’s got mental issues, and did you ask her …” Everett: “She also …” Applicant: “That she didn’t have to say anything, because …” Everett: “She also got those same rights and cautions.” Applicant: “Yeah, I know but she …” Everett: “Yeah.” Applicant: “Doesn’t know because of the …” Everett: “Yeah.” Applicant: “She needed a …” Everett: “But …” Applicant: “A lawyer present if, if she’s going to do that.” Everett: “Chris …” Applicant: “Not me, I’m right.”
A discussion then followed about Ms Bunting’s capacity to answer. The applicant
said, “She’s got a right to say no, but her brain, her brain just won’t. Like …”.
After this the applicant was informed that some material had been found in the garage. Everett said the applicant had denied that there was cocaine or anything like that. She
asked if there was anything else that “we may have already seized”. The applicant said, “Oh there might have been a couple of little baggies, some, somewhere”. Later
he said, “That’s mine”, when shown a bag. Questioning then turned to whether he
shared it with anyone. He said, “A few of us friends get together … and we might have one”. He was asked how much he had recently acquired and he said, “Probably
a Q or something … like a gram, a quarter ounce”. He said he liked “a bit of coke”.
He was asked about his comment that he shared it with his mates and his response
included “and I’m payin’ for it” and “I don’t wanna, I, I don’t wanna say any more
about that”.
Then the following was said:
Everett: “Is this your phone as well, Chris?” Applicant: “Mm, yep.” Everett: “And what’s the passcode for this phone?” Applicant: “1368888.” Everett: “What’s the relevance of that number?” Applicant: “Ah, it was, um, it was somethin’ else, and when I got me new one I had to change it, so just so it’s easy to remember. Oh, me last one was 138, yeah …”
I am satisfied on the balance of probabilities that the applicant provided the passcode voluntarily. I am satisfied of this in view of the following matters. The applicant said
that he understood that he did not have to answer questions. He said “Yeah, no you’ve told me, I understand.” He manifested this understanding by exercising his right to
silence when he considered it appropriate to do so. The examples of this are when he said he would never tell the police particular details because he was not going to dob on others but might have done so if those others had been involved with ice, and when he said he did not want to say anything more about his sharing of drugs with friends. His statements showing his concern that Ms Bunting did not properly understand that she had a right not to answer questions provided another illustration that he knew that he had that right. I consider that he demonstrated a very sound understanding of his right to silence. His discrimination between questions he would answer and those he would not assists to show that he provided his passcode in the exercise of a free choice to speak or be silent. I do not consider that information conveyed to him about his obligations as an occupier of the premises and about the possibility of arrest if he obstructed the search had the effect of deflecting him from appreciating that he was not obliged to provide the passcode. The general impression created is that he was happy to answer questions as long as he was not being asked to inform on others. He volunteered information without being asked for it, such as saying that he could get cannabis from Facebook and informing the police where he had acquired his turtles. His demeanour, though a much lesser consideration, was consistent with a person
who was quite at ease in dealing with the police. I do not consider that Strain’s
announcement that the phone would be retained for up to 30 days or the invitation to record or make a note of some numbers in his phone due to the seizure of it were capable of causing the applicant to think that he had no choice but to provide the passcode. Having regard to what Everett said and the tone in which she said it and
the context in which she said it, the words, “And what’s the passcode for this phone?”
constituted a question, not a direction or a command that had to be complied with.
In reaching the conclusion that the passcode was provided voluntarily I have not taken into account the opinions given by Everett and Strain that the applicant appeared to or seemed to understand the warning about not being obliged to answer questions. Their evidence about this was inadmissible.
Should the answer be excluded in the exercise of the discretion to exclude evidence which has been unfairly obtained?
This discretion is concerned with whether the reception of the evidence will be unfair to the applicant. The onus lies on the applicant to show, on the balance of probabilities, that it would be unfair to him.[5]
[5] Cleland at 18-19.
In R v Swaffield Toohey, Gaudron and Gummow JJ said:[6]
“Unreliability is an important aspect of the unfairness discretion but it
is not exclusive. As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused. Those
rights include procedural rights.”
[6] (1998) 192 CLR 159 at 197 [78].
No issue arises about the reliability of the answer the applicant gave. His counsel
conceded this.[7] The applicant instead concentrated on the effect of the police officers’
conduct, that being, he argued, to undermine his right to silence because that right was not sufficiently respected. He pointed to the following matters considered in combination: the warning at the start of the search, which included that any act of
obstruction of the search could result in the applicant’s arrest; the reiteration of this
when outside the house; the exercise of his right to silence by the applicant just prior to being asked about his passcode with respect to the issue of supplying cocaine and then the question related to that issue; that no warning was given that the applicant did not have to provide the passcode, and, a warning was necessary in view of his recently exercised right to silence; and, a portion of the caution the law required to be administered had not been complied with.
[7] Transcript 22 August 2024, page 1-47, lines 33-37.
I am not satisfied that it would be unfair to the applicant for his answer to be adduced
in evidence against him. I am not persuaded that the effect of the officers’ conduct
undermined the applicant’s right to silence, because I am not persuaded that the police
conduct affected the applicant’s understanding or ability to exercise the right to
silence.
The evidence set out at paragraphs [15] to [26] above establishes that the applicant understood quite well his right not to answer questions. He was not distracted from exercising or inhibited from exercising the right by being informed that any obstruction of the search could result in an arrest. It was not apparent from the footage
that he read the statement to occupier which had, as part of its heading, “Obligations”.
Had he done so, he would not have found any elucidation of those obligations in that document anyway. The fact he announced he did not propose to say anything further about paying for drugs or supplying some to friends, supports a conclusion that the impugned conduct of the police did not distract him from a proper appreciation of his rights. Exercising the right to silence about supplying friends might well be explicable on the basis he did not want to be asked to name or identify them. Shortly
before he said he did not want to answer that question, he said, “Yeah but I’m, I’m (inaudible) implicate them any more if, like … I’m not sayin’, yeah”. At an earlier
point he had said, “Am I implicatin’ anyone if, if I (inaudible), like me mates come over and watch the footy and he has one, or am I implicating anyone?” The applicant
did not express any reservation or hesitation in answering about the passcode.
The police were not required by law to repeatedly warn the applicant that he did not have to answer their questions. The applicant was aware of his rights.
When Everett informed the applicant on the two occasions about his right to silence and rights to contact a relative or a lawyer, she did not inform him that questioning could be delayed for a reasonable time to allow the applicant to telephone or speak to a friend, relative or lawyer. The obligation to delay questioning is imposed by s 418(2) of the Police Powers and Responsibilities Act. If required to inform a person of matters mentioned in s 418(1) of the Act, s 23 of the Police Powers and Responsibilities Code, which is contained in Schedule 9 to the Police Powers and Responsibilities Regulation 2012, provides that a police officer must inform the person in a way which substantially complies with s 23. Section 23 relevantly includes:
“If you want to telephone or speak to any of these people, questioning
will be delayed for a reasonable time for that purpose. Is there anyone
you wish to telephone or speak to?”
As appears from paragraph [15] above, the applicant said he did not want to have a friend or a relative present, he did not want to contact such a person or contact a
lawyer. In this circumstance the police officer’s non-compliance with this aspect of
s 23 did not work any material detraction from the applicant’s procedural rights.Did the police act unlawfully thus enlivening the discretion to exclude evidence on public policy grounds?
The applicant seeks the exclusion of the evidence of the passcode in the exercise of the discretion recognised in R v Ireland.[8] The onus lies on the applicant to persuade the court that the discretion should be exercised in his favour.[9] The discretion is engaged if evidence can be shown to have been obtained as a result of unlawful or improper behaviour on the part of the police. It is contended that the police breached s 58(1)(a) of the Human Rights Act 2019 (Qld) when Everett asked for the passcode.[10] That provision states:
[8] (1970) 126 CLR 321 at 335.
[9] Cleland at 20.
[10] Transcript 22 August 2024, page 1-50, line 39 – page 1-51, line 8.
“58 Conduct of public entities
(1) It is unlawful for a public entity –
(a) to act or make a decision in a way that is not compatible with human rights; or (b) …”
The right that the applicant says is engaged in this case is the “right … not to have the person’s privacy … or correspondence unlawfully or arbitrarily interfered with”.[11]
As to whether the asking of a question is, for the purposes of s 58(1)(a), an act or a decision, counsel for the intervenor directed attention to Director of Public Prosecutions v Kaba[12] which held that in that case the asking of a question was an
act, not a decision. In this case the applicant acknowledged that if the words, “And what’s the passcode for this phone?” constituted a question then, provided that
question was asked after appropriate cautions had been given, that question was not unlawful for the purposes of s 58(1)(a) of the Act.[13] However, the applicant argued that it was to be characterised or understood or regarded as a direction in which case there was no lawful basis to give the direction thus rendering the answer one which was obtained unlawfully.
[11] Human Rights Act, s 25(a).
[12] (2014) 44 VR 526 at 647 [467] (“Kaba”).
[13] Transcript 22 August 2024, page 1-52, line 8 – page 1-53, line 5.
Counsel for the intervenor submitted that if the words, “And what’s the passcode for this phone?” were properly characterised as a question, then the mere asking of a
question could not be regarded as an interference with the right to privacy if the hearer
freely answered it. He referred to Kaba,[14] where it was said that “we can generally understand the right to privacy as … the right of the individual to determine for
himself when, how, and to what extent he will release personal information about
himself.”
[14] At 560 [119].
As I have already said, the words, “And what’s the passcode for this phone?” clearly
constituted a question. The question was reasonable for a police officer to ask in circumstances where she had formed a suspicion about the evidential value of the phone.[15] The answer was provided voluntarily after cautions were given. In these circumstances it is acknowledged by the applicant that no unlawful conduct on the part of the police can be demonstrated. The applicant did not rely on any failure to comply with s 23 of the Police Powers and Responsibilities Code as unlawful conduct warranting exercise of the public policy discretion.[16] Accordingly, there is no basis shown for discretionary exclusion on public policy grounds.
[15] Transcript 6 August 2024, page 1-21, lines 21-33.
[16] Transcript 22 August 2024, page 1-45, lines 40-45.
As no unlawful or improper conduct can be demonstrated there is no need to consider the operation of s 59 of the Human Rights Act.
(“Cleland”).
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