R v Cja

[2012] QSC 19

SUPREME COURT OF QUEENSLAND

CITATION:

R v CJA [2012] QSC 19

PARTIES:

THE QUEEN
v
CJA

FILE NO/S:

125 of 2002

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

13 February 2012

DELIVERED AT:

Cairns

HEARING DATE:

8 February 2012; 10 February 2012

JUDGE:

Henry J

ORDER:

The recorded interview between Constable B and the defendant is excluded from the evidence which may be adduced against the defendant in this matter

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – ADMISSIBILITY – POLICE RECORD OF INTERVIEW – whether confession had been induced by promise by police – where defendant wanted to confess his account – whether interview should be excluded

R v Foster (1993) 113 ALR 1
R v Hagan [1966] Qd R 219
R v Plotzki (1972) Qd R 379

Criminal Law Amendment Act 1894 (Qld) s 10

COUNSEL:

Mr R W Griffith of the Office of the Director of Public Prosecutions
Mr K T McCreanor for the applicant

SOLICITORS:

Office of the Director of Public Prosecutions
Richardson & Associates

1. The defendant was found in possession of a lot of cannabis sativa. He was keen to explain to police how it was not his and he was only holding it for someone else. Despite his enthusiasm to confess his account he complains his confession in an ensuing taped interview should be excluded because it was induced by police promises that they would go as easy as they could on him and make sure he would get legal representation.

1. The application turns on two questions of fact. Was there was a promise by the police? If so did it induce the confession that the defendant had thereafter made? It is for the prosecution to establish on the balance of probabilities that those questions should be answered in the negative[1].

[1]        R v Hagan [1966] Qd R 219, R v Plotzki [1972] Qd R 379.

Background

1. Police from the drug squad were searching the residence of KD on 13 August 2010 when the defendant arrived. Constable B dealt with the defendant outside and found he was in possession of about 336 grams of cannabis in two unsealed cryovac bags.

1. The defendant accompanied Constable B to the Cairns Police Station and then to the defendant’s residence. The police there found in a bucket four sealed cryovac bags of cannabis each weighing about half a kilogram. They also found two freezer bags of cannabis weighing 29.8 grams, some scales and a bong and cone.

1. The defendant and police returned to the station where the defendant then entered into a digitally recorded interview with police. He then provided a witness statement to police, which the police obviously gathered for possible use in respect of their case against KD.

1. He was then charged with offences including six charges of supplying a dangerous drug and one count of possession of a dangerous drug with a circumstance of aggravation. He is now facing similar charges on the indictment before the Court except that since the committal the prosecution has also introduced a charge of trafficking.

Earlier conversations between the Defendant and Constable B

1. The conversation involving the alleged inducement occurred at the station after the police and the defendant returned there following the search of the defendant’s premises and before the commencement of the recorded interview.

1. It is common ground that by that time Constable B had already had conversations with the defendant outside KD’s residence, then at the police station and then at the defendant’s residence.

1. The defendant says of the conversation outside KD’s that he told Constable B he had something to say to him but that he did not want to say it there, because of the proximity of KD. He claims it was when they then went to the station that he explained the drugs he had been caught with were not his but that he was holding them for KD.

1. On the other hand Constable B says the information that he was holding the drugs for KD was given to him in the conversation outside KD’s. 

1. Constable B claims to have recorded the conversation outside KD’s on a digital field recorder but later deleted it because he deemed it a confidential conversation with an informant and does not keep recordings of confidential information from informants. The recording was a recording of a conversation with a suspect – the defendant had just been found in possession of cannabis. The information the defendant was supplying about KD was information inextricably linked to the account he was giving about the drugs he had been caught with. That is, his account may have provided information regarding KD’s offending but it was simultaneously evidence of the defendant’s own wrongdoing. Constable B’s explanation for deleting such a recording suggests a lack of appreciation of the significance of the defendant’s dual status that day as a suspect and informant and an unwarranted emphasis on his status as an informant.

1. Constable B did make some notes of the conversation in his official police notebook but the notes do not indicate at what venue, KD’s residence or the station, the notes were made at.

1. The conversation at the police station before attending the defendant’s residence was not digitally recorded. There is some variation of recollection between Constable B and the defendant, the only two witnesses on the voir dire in this application, as to how the topic of what further drugs might be at the Defendant’s house was raised. However it is common ground it was discussed and the defendant revealed there were drugs there.

1. The ensuing search at the defendant’s residence was digitally recorded. I have listened to that exhibit. It contains little noteworthy information for present purposes save that around the re-administering of warnings the defendant said words to the effect of, “Well like I said, I’ve got nothing to hide, you’ve already written down what I know”.

The conversation containing the alleged inducement

1. On their return to the police station from the defendant’s residence there was a conversation prior to the commencement of the recorded interview. The pre-interview conversation was not tape-recorded.

1. The defendant’s account of the pre-interview conversation in evidence in chief was given in the following exchange:

“McCREANOR:       All right.   So they said that they thought it wasn’t you -- Yeah.  They- they said, “Yeah, look, we kind of believe you.  We – we kind of believe you.”  She – they said, “This isn’t – you’re not the first person that she’s done this to. We’ve got a bloke at the moment that got caught with” – I can’t exactly remember how much, “but we caught him with marijuana and over a hundred thousand dollars in cash”, and they told me that he’s going to be in evidence with them and – and that – like against her, and that – that if I give them a statement that they’d make sure that they- or , you know, do the record of interview and everything like that, that they’d make sure that they got me a public defender and that they’d go easy as they – as they could  they said, “You’re still in the shit” – can I say-Yes, yes? -- They said, “You’re still in the shit but we’ll” – we’ll make it go as easy as we can on you” and, yeah, that “by providing us with” – “with as much information as you can give us.”  And that’s when I – I said, “Well, you know, this is my” – “this is going to help me.  I know I’m in the” – “I know I’ve done the wrong thing and I know I’m in it.”  If this is going to help me, then, yeah, I’ll help them out as much as I can.

Okay.  Was there any mention about you being an informant? -- Yeah, they wanted to sign me up as – as an informant.  They said after they – they wanted – because I told them that I was worried about what was – the repercussions of what I was going to do, they said, “Look, we’ll sign you up as a registered human source – or – or they – no, he said, “Basically it’s an informant which puts you in our” – “on our side which” – “which will go for you when it comes around to Court.”

Right? – Yeah.  I mean I just – I was listening to them.  I was just- again, you know, I was just – I didn’t know what – which way to turn.  You know, they asked me if I wanted a solicitor.  I didn’t know any solicitor.  I had no idea.  I have never been in trouble before.

Okay? – And I was just a mess.

Now, what were you feeling at the time? I mean ---? -- I was stressed out.  I was pretty much like I am right now, dry mouth, stressed out.  I was – you know, I – I just didn’t know what to do.  I was going along with them.  They’re police officers, you know, and they – I just assumed that ---

Okay.  Now, so why did you go along with them? --  Because I need – I wanted it to go a lot easier on me because I – I told them several times that it wasn’t mine, and – and, you know, I – I claim no ownership on it at all.  It wasn’t mine.”[2]

[2]Ex 1 T1-52/41-T1-53/39

1. The defendant’s information about KD was of obvious interest to the police.  It was her premises the police were searching in the first place.  The defendant’s evidence in the above quoted passage about what the police said regarding another person who was going to assist them with evidence against her had the ring of truth to it.  The obvious interest of the police in potentially using the defendant’s evidence against KD was demonstrated subsequent to 13 August 2010 when Constable B telephoned the defendant and left a message on his answering machine asking him to get in contact with the police and say:

“Mate, if you – I can understand that you – you’re suffering a little bit of anxiety about what’s happened, OK, but mate, the truth of the matter is you’re concerned about giving evidence, mate if you don’t want – if you don’t want to go down the road we’re heading you’re going to be summonsed in court and you’ll be forced to give evidence against your will, OK.  We’re trying to help you out here, mate, so give us a call eh.”[3]

[3]Ex 6

1. In cross-examination it was suggested the defendant’s  motivation for entering into the interview was his desire to reiterate to the police that the drugs were not his and he was only minding them for KD:

“MR GRIFFITH: You didn’t want the police to think when you turned up at KD’s house with a shoebox and 366 grams of marijuana in it, you didn’t want the police to think that you were going there to sell those drugs to KD or someone at the house; did you? -- No, I didn’t.

All right.  You didn’t want the police to think that the four pounds of marijuana in your bedroom closet were there because you sold marijuana to people; did you? -- No, I didn’t.

You wanted the police to understand that you had all these drugs in your possession because you were minding them for KD? -- That’s right.

And so when you chose to do an interview with the police, it was not because they threatened you to – or offered you assistance to help you out; it’s because as you had been doing all day, you wanted to tell them on the record that they were not your drugs, they were KD’s drugs.  That’s why you did the interview; isn’t it? -- Well, that – I didn’t even think about that, no.  To be honest with you, no, I didn’t.

Well, what were you thinking about when you did the interview? -- Well, it’s hard to remember because as I said before, I was stressed out, I don’t know.  I – I told them what I told them because of what they told – what – what I was asked, you know, like with regards to telling me about helping them out and, you know, “You help us out and we’ll give you a public defender, we’ll take it easy on you.”  I knew I was in trouble because I got caught with it and ---[4]

[4]T1-66/28-T1-67/4

1. Constable B acknowledged there was a pre-interview conversation but did not advance an account of the detail of what was said.  The inference from his account is that it was a brief conversation.  Another officer was apparently present for the conversation but he was not called as a witness.

Section 10 Criminal Law Amendment Act

1. The defendant’s application to exclude the interview relies upon s 10 of the Criminal Law Amendment Act 1894 (Qld), which provides:

No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.

1. It is common ground here that the recorded interview was a confession. While it contained information tending to portray the defendant as a mere agent of KD’s and in that sense sought to explain his involvement was at a low level of culpability it was nonetheless an admission of guilt.

1. The applicant submits the promise to go easy on the defendant and help arrange legal representation induced the defendant to enter into the recorded interview and confess his role. The prosecution submits no such promise was made or if it was, it did not induce the confession.

Was there a promise by the police?

1. This is not a case in which the critical police evidence is corroborated by a tape recording or by multiple witnesses. Nor is it a case in which the content of the ensuing taped interview is of assistance to the prosecution in demonstrating the absence of an inducement.

1. The recorded interview contained the following questioning towards its conclusion, culminating in the question of whether there had been a promise:

“CON B:  You – you done, mate?

CON R: Um, are you happy to provide a statement to us in relation to the events, um – in relation to obtaining the cannabis with KD and –
DEFENDANT: What do you mean? Just write down like a stat dec or something as to ---
CON B: A written – a written statement.
CON R: We’ll take a statement off you in relation to the events of obtaining all this – this –
DEFENDANT: Yeah, yeah, yeah.
CON R: --cannabis, storing it at your house?
DEFENDANT: Mate, I – like I said, I’ll – I’ll help out any way I can because it – I – I’m feeling like I’m copping this from – and it’s not mine.
CON R: Yep.
DEFENDANT: You know? And I don’t – I’m not gonna take the wrap for other people’s shit, basically.  You know, I – I, um – yeah, I’ve –
CON R: Mate –
DEFENDANT: -- never done – I’ve never done anything wrong, I’ve made a bad choice, that’s what I’ve done.
CON R: So you’re happy to provide evidence in relation to –
DEFENDANT: Mate, I – I’ll –
CON R: -- KD’s involvement?
DEFENDANT: I’ll help out however I can.
CON R: Yep.
DEFENDANT: As long as it stays away from her knowing about it because if –
CON R: Yep.
DEFENDANT: -- it gets to her knowing about it then I’ll be in trouble.
CON R: Yep, and you’re doing this of your own free will?
DEFENDANT: Absolutely, because ---
CON R: Has –
DEFENDANT: -- I don’t want – this is not mine, that’s what I’m saying, I’ll –
CON R: Has –
DEFENDANT: --help out.
CON R: -- either Glen or I or anyone else promised you anything, threatened you or anything into – to providing – not only providing this statement, um, this interview –
DEFENDANT: Mate, I’m here – I’m here by me – I’m – absolutely not, I – as I said, I’m gonna try and help you guys out however I can, I just feel like I’ve been –
CON R: No problem, okay.
CON B: All right, finished?

CON R: Yep.”[5]  (emphasis added)

[5]Ex 1 p64/3-p65/22

1. The question at the conclusion going to whether there had been a promise blurred the question of whether there had been a promise or threat prompting the defendant to be interviewed with the question whether there had been a promise or threat prompting the defendant to agree to make a witness statement.  It did not receive a responsive answer and no attempt was made to put the question more clearly or to press for a responsive answer. In short the content of the recorded interview, at the stage where such interviews ordinarily gather positive evidence from the interviewee that there has been no inducement, does not assist the prosecution in discharging the positive onus upon it.

1. Constable B’s version of his exchanges with the defendant was not advanced by him as word perfect. That is to Constable B’s credit. It would not have been credible for him to assert it was. His notes were in generalized language and did not cover all conversation. He could not be expected to have an entirely clear recollection of all that he said to the defendant.  Moreover he was recalling a series of conversations in which there was likely to have been a repetition of some topics of discussion, making it unlikely he could be certain as to at what stage some matters were discussed.

1. The disadvantage Constable B was under in recalling precise detail about a chain of conversations falls to be considered in the context of him dealing with the defendant as both a suspect and an informant. Where that occurs there is a risk that well intended police words of reassurance towards an informant may nonetheless amount to an inducement towards a suspect. As already noted the Constable’s destruction of a recorded conversation made earlier that day suggests a lack of appreciation of the significance of the defendant’s dual status that day as a suspect and informant. So too does the lack of precision in the questioning in the recorded interview as to whether there had been an inducement to enter into the interview as distinct from to provide a witness statement.

1. None of this means there was in fact a promise made. However it means Constable B’s denial that there was one is not particularly compelling. It is entirely possible against that background that his denial may be honest yet mistaken. These concerns may have fallen away had the evidence of the defendant been lacking in credibility. However the defendant’s evidence was credible.

1. Like Constable B his evidence of conversations was not precise but that is to be expected. He was a civilian dealing with police over a prolonged period in circumstances he had no previous experience of.

1. The respondent suggests the defendant’s account of the police referring to a “public defender” is implausible; the term being more likely to be heard used in American television crime shows than by police in Queensland. I disagree. It would be unremarkable if police explaining concepts to lay persons adopted terminology, including terminology from television shows, which lay persons would readily understand. In any event when pressed in cross-examination as to whether “public defender” was the term actually used by the police the defendant was not particularly insistent, indicating it was “as best as I recall” and “as far as I remember”[6].

   [6]T1-61 L38-45

1. The respondent also submits in effect that the defendant’s account of entering into the interview because of the alleged promise undermines his credibility because it is implausible such a promise would make any difference to the defendant given he earlier seemed so intent on giving his explanation for possessing the drugs to police. However there is no logical reason why the defendant’s decision to enter into the interview could not have been influenced by more than one consideration.

1. I find a promise to the effect claimed by the defendant was made.

Did the promise induce the confession?

1. The respondent contends that even if the promise was made it did not induce the confession. Rather, it is submitted, the confession was going to be made even if the promise was not made.

1. There is no doubt that prior to the interview the defendant had willingly informed the police that the drugs found in his possession were held by him on behalf of KD.  However, the information he subsequently provided in the interview was considerably more detailed than the information he had provided to the police prior to it.  It is by no means inevitable that he would have provided such information in that interview regardless of the promise made to him by police prior to it. 

1. It must be borne in mind the defendant who had not been through a process such as this before was likely, as he claimed, to have found the experience stressful.  In making the decision to continue his cooperative behaviour towards the police to the extent of entering into a recorded interview at the police station with them, he would have been reassured by the promise which was made to him. 

1. Where as here, there has been an inducement, it will have the effect of rendering the ensuing confession inadmissible unless it is established by the prosecution on the balance of probabilities that it did not operate at all upon the mind of the person to whom it was made[7].  There is arguably some divergence of view as to whether the prosecution must show the inducement did not operate at all on the defendant’s mind, the test identified by Queensland Court of Criminal Appeal in R v Plotzki[8], or whether it is enough for the prosecution to prove that the inducement played no substantial part in the making of the confession which followed, the test applied by the High Court in respect of the New South Wales near equivalent of s 10 in R v Foster[9].

   [7]R v Plotzki (1972) QdR 379 at 384-385

   [8]Ibid

   [9](1993) 113 ALR 1 at 17

1. However, even applying the latter test, which is slightly more favourable to the prosecution, the prosecution has not shown the promise played no substantial part in the defendant’s decision to participate in the recorded interview. Accordingly, s 10 prohibits the receipt of that confession in evidence in this matter.

Order

1. The recorded interview between Constable B and the defendant is excluded from the evidence which may be adduced against the defendant in this matter.