R v Clevens
[2012] QDC 144
•8 June 2012 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
R v Clevens [2012] QDC 144
PARTIES:
R
V
Michael John CLEVENS
FILE NO/S:
2717/12(3)
DIVISION:
Criminal
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Kingaroy
DELIVERED ON:
8 June 2012 (ex tempore)
DELIVERED AT:
Kingaroy
HEARING DATE:
5 - 8 June 2012
JUDGE:
Irwin DCJ
ORDER:
- The recorded interview between Mr Clevens and Plain Clothes Constable Joshua Ryan on 12 November 2011 at 9.40 a.m. at 46 Watt Street, Murgon be excluded from the trial.
- the record of interview on that date at 2.15 p.m. between Mr Clevens and Detective Sergeant Bull at the Murgon Police Station be excluded from evidence at the trial
CATCHWORDS:
CRIMINAL LAW - Evidence - admissibility - confessions and admissions - whether statements made by accused during interviews with police officers involuntary - where the statements were made by accused following police non compliance with statutory requirements - discretion to exclude - fairness discretion - public policy.
Criminal Law Amendment Act 1894 (Qld), s 10
Police Powers and Responsibilities Act 2000 (Qld), s 415, s 418, s 420
Schedule 10 (Responsibilities Code), s 34, s 36.
Bunning v Cross (1978) 52 ALJR 561; 43 ALR 619, applied.
Cleland v The Queen (1982) 151 CLR 1, applied.
Pollard v The Queen (1992) 176 CLR 177, applied.
The Queen v Swaffield (1998) 192 CLR 159, applied.
THE COURT RESUMED AT 3.25 P.M.
HIS HONOUR: The defendant, Mr Clevens, is charged with one count of arson of a motor vehicle alleged to have occurred on the 11th of November 2011 at Murgon. He was originally charged jointly with Patrick Dwayne Bligh, however, as a result of a ruling that I made yesterday in relation to the admissibility of evidence of admissions by Mr Bligh, the Crown has entered a nolle prosequi today. As a consequence, Mr Clevens now stands alone on that charge.
This is an application brought on Mr Clevens' behalf to exclude evidence upon his trial, which commenced earlier this
week with a plea of not guilty to the indictment, and the empanelment of a jury. The orders sought are that I exclude the recorded interview between plain-clothes Constable Joshua Ryan and Mr Clevens on 12 November 2011 at 9.40 a.m. at 46 Watt Street, Murgon. And I also exclude from evidence the record of interview on that date at 2.15 p.m. between Mr Clevens and Detective Sergeant Bull at the Murgon Police Station.
As I said in relation to the similar application in relation to Mr Bligh, there is some urgency in resolving this application due to the fact that the jury has been empanelled, and the decision will affect the future of this trial and other arrangements for the sittings. It was agreed to be convenient in all the circumstances for me to hear the arguments for the exclusion of the evidence separately in relation to Mr Clevens and Mr Bligh, although the submissions relate to evidence which was called in relation to each of them on a voir dire.
The sequence of events which led to the interviews with Mr Clevens commence on 12 November 2011 at about 9.15 a.m. when police interviewed Theo McLeod, initially it would seem as a suspect, however, ultimately he became a witness on whose information the police have relied. During this interview, Mr McLeod nominated Mr Clevens and a person known as Isiah as being responsible for the arson of the motor vehicle at CTC, which is the vehicle, the subject of the count of arson on which Mr Clevens has been indicated. "Isiah" can be taken to be a reference to Isiah Tapau. This interview was completed at 9.25 a.m.
The information given in this interview triggered police to locate Mr Clevens at a residence at 46 Watt Street in Murgon. The two police officers who were responsible for the interview conducted there went to this residence. They are Sergeant Bull and Constable Ryan. It was Constable Ryan who conducted an interview of him with a digital recorder under a tree at the back of the residence. This conversation would have taken five to 10 minutes.
During this interview, Mr Clevens denied any involvement in the incident, although he placed himself in the area near to where the incident occurred. He was arrested and taken in custody back to the Murgon Police Station. After remaining in custody in the watch-house for about four and a-quarter hours, he participated in the second record of interview, which was digitally and visually recorded by Detective Sergeant Bull, starting at 2.15 p.m. on that date.
At the outset of the interview, he was cautioned by Detective Sergeant Bull. Having identified himself as being Aboriginal, he indicated in response to a question, that he wanted to speak to Brad Taylor, who he said came from ATSILS. The interview was terminated, but for reasons that I will discuss, when the interview was resumed neither Mr Taylor nor any other representative of ATSILS had been contacted.
It is said by Detective Sergeant Bull that during a discussion with Mr Clevens during the suspension of the interview, it was appreciated that ATSILS would not be open, and the defendant then said he would tell Detective Sergeant Bull what had happened.
The defendant again denied his involvement in the incident. However, the Crown relies upon both this interview and the earlier interview as containing statements against interest which put him at or in the vicinity of the scene where the arson occurred.
It is also submitted that when the interviews are considered as a whole there is such a difference in his account as to exactly where he was in relation to the scene of the arson that can be relied up on at trial in support of a submission that he demonstrated a consciousness of guilt.
The applicant submits that the interviews should be excluded from evidence on the basis that they were not made voluntarily by the applicant and, in any event, I should exercise a discretion to exclude the interviews on the basis they were improperly obtained and it would be unfair to the applicant to admit them in evidence.
There is a statutory basis for the inadmissibility of a confession under section 10 of the Criminal Law Amendment Act 1894, on the grounds that it has been induced by a threat or promise by some person in authority. In addition, as stated in Clelland v. The Queen [1982] 151CLR1 at 5, "A confession will not be voluntary if the defendant had no free choice whether to speak or remain silent."
The basis on which it is argued that the Prosecution have not established, on the balance of probabilities, that the confession was voluntary, whether by reference to the Criminal Law Amendment Act or the principal in The Queen v. Clelland, is based on the suggestions which were put to both of the police officers during their cross-examination by Ms Chekirova.
Firstly, at 2-79 of the transcript, it was suggested to Constable Ryan that having taken Mr Clevens in their motor vehicle from the residence at Watt Street to the CTC building, as he had admitted, he then effectively, said to him, "Look what you've done." It was then put that they proceeded to Clifton's Car Yard where he was shown the scene of another arson and the same thing was said to him. This was denied by Constable Ryan.
Similar propositions were put to Detective Sergeant Bull at 3-21 of the transcript. It was suggested to him that he had said these things to the defendant, firstly, at the CTC location and then after proceeding to Clifton's Car Yard. Again, that was denied.
After I had drawn to Ms Chekirova's attention that it had been put to each police officer that he had had such a conversation with the defendant, Ms Chekirova put the following, more detailed propositions, commencing at 3-32 of the transcript, to Detective Sergeant Bull. She suggested
that the first place he and Constable Ryan went was to Clifton Motors. It was then suggested that on the way, Detective Sergeant Bull said, "You shouldn't go around burning things up." to which Mr Clevens replied, "I never burnt nothing."
It was then suggested that Detective Sergeant Bull replied, "I would suggest to you we've got witnesses. You did this." It was next suggested that, on arriving at Clifton Motors, Detective Sergeant Bull showed Mr Clevens a burnt car in the yard and said to him, "Look what you have done."
It was suggested that Mr Clevens replied, "I never did nothin'". It was suggested that after this he was taken to the CTC location at which time he was handcuffed in the car. It was also suggested that at the CTC location the defendant again said, "I done nothing." It was suggested that Detective Sergeant Bull responded, "No, do not lie. We have witnesses. Someone pointed you out", and finally it was suggested that when the defendant asked who had pointed him out, Detective Sergeant Bull responded, "That's not something I can tell you." Each of the suggestions was denied by Detective Sergeant Bull.
In my view, the prosecution have established on the balance of probabilities that the admissions made by Mr Clevens against his interest were made voluntarily in circumstances where, just as Constable Ryan had denied the allegations which were contained in those suggestions, so, too, did Detective Sergeant Bull. There is no evidence from Mr Clevens, or any other evidence, to contradict those denials.
I take into account that there is a contradiction in the instructions which have been put and the instructions evolved to more and different detail after I had discussed with Mr Clevens' counsel the proposition that it seemed to have been put to both police officers that each of them was the person responsible for speaking to Mr Clevens, as suggested, in the motor vehicle. In the more detailed instructions, the sequence in which the defendant was taken to each of the locations was reversed.
In addition, I have had the opportunity to hear Mr Clevens' voice in the digital recording of the conversation at Watt Street and the added advantage of seeing him visually respond to questions during the interview later at the police station. I can find no indication from those auditory and visual observations that the defendant was threatened or was speaking in response to a promise from one of the police officers to him, nor from his demeanour and tone of voice is there anything that suggests to me that he was not speaking out of a free choice whether to do so or remain silent.
For completeness, I mention that during the suspension of the interview with Detective Sergeant Bull, it was put to Detective Sergeant Bull that it was he, rather than the defendant, who had raised the issue of the ATSILS office not being open on a Saturday. This was also denied, and, again, there is no evidence to the contrary. As a result, I proceed on the basis of Detective Sergeant Bull's evidence in relation to that.
It follows that the issue for my determination is whether or not these admissions should be excluded on the basis that they were improperly obtained, either on the basis of the discretion to exclude evidence which is unfair to the defendant, or to exclude evidence on the grounds of public policy. In considering this issue, I return to the circumstances which led the police to interview the defendant.
As I have said, after the interview with Mr McLeod, the detectives went to the house at Watt Street where Clevens was residing. It only took a couple of minutes after the interview with Mr McLeod concluded, at 9.25 a.m., to reach that house. As I have indicated, at that time the police officers knew that McLeod had implicated Mr Clevens as well as Isiah Tapau in the arson of the motor vehicle. As Constable Ryan said in his evidence, it was this that triggered an interest in Mr Clevens. Detective Sergeant Bull said that at this time he reasonably suspected Mr Clevens of being involved in the offence, that is, in the eyes of Detective Sergeant Bull he was a suspect.
Constable Ryan said that Mr Clevens was asleep when they arrived. He was woken by their arrival, although he was not sure whether he went into the house or whether Mr Clevens was woken by his sister who was also there. In any event, he said that he outlined the allegations to Mr Clevens at the front of the house before the digitally recorded interview was conducted under the tree.
He said that prior to the tape being activated he would have told Mr Clevens that he was there in relation to the fires. He also said that he asked Mr Clevens if he was willing to participate in the interview and he agreed. He said that he could not remember the conversation before the activation of the digital recorder word for word. Detective Sergeant Bull cannot provide any assistance at this stage of the conversation because he was independently involved in speaking to the defendant's sister.
However, as Constable Ryan explained in more detail at 2-66 of the transcript: "So, when you said that you informed my client in relation to the nature of allegations against him, what, to the best of your memory, can you just state to the Court what exactly you said?‑‑ Yeah, it would have been about the fires. I would have said something to the effect of, 'I need to talk to you about what occurred last night at CTC and Clifton's about the cars being burnt'. It would have been something along those lines. It could have been the word 'arson', not fires. It could have just been 'about the fires last night'. Could have been 'about the arson last night', but it was in a nutshell outlined there'd been fires and he'd been named as a suspect and I wanted to interview him." Constable Ryan also said, "I would have said he'd been named. Whether I used the word 'suspect' may be different. I would have said he'd been named."
Interestingly, given Constable Ryan's evidence about not giving interviewees an immediate opportunity to adopt unrecorded conversations, in relation to this digitally recorded interview with Mr Clevens, as early as page 3 of the transcript of that interview he sought to do so by saying, "You were asleep. We woke you up and I said to you, 'I want to talk to you about the fires last night'". Mr Clevens replied, "Yeah". Constable Ryan then said, "And that's the only conversation we've had about the matter." Mr Clevens replied, "Yeah, brother."
Earlier he had said to the defendant at page 2 of the record of interview, "All right. No dramas, man. Listen, Michael, what I want to do today is okay, overnight there was two motor vehicles that suffered some fire damage to 'em; okay? And you've been nominated as a suspect in relation to those matters, okay? What I want to do today is ask you some questions about those matters, okay, about what happened last night, okay? But I do ask - but I do ask you any questions, you have a number of cautions and rights."
In these circumstances, I consider that Mr Clevens was in the company of the police officers for the purpose of being questioned as a suspect about his involvement in the commission of an indictable offence of arson. Therefore, he was a relevant person as defined in section 415(1) of the Police Powers and Responsibilities Act 2000. Accordingly, Part 3 of that Act, and the schedule to the Act, which is the Police Responsibilities Code, applied. The exclusion provisions of section 415(2) do not apply in the circumstances of this case.
Constable Ryan seemed to recognise this, because he proceeded as I have already intimated, to give Mr Clevens a number of rights and cautions required under section 415(1) and 418 of the Act. For completeness, I note that Detective Sergeant Bull's evidence was he was not present for the whole conversation, because as I have said, he remained at the front speaking to Mr Clevens' sister. His evidence was that Constable Ryan had spoken to Mr Clevens for two to three minutes before he arrived. This is consistent with the transcript of the interview which shows Detective Sergeant Bull has been introduced to Mr Clevens towards the bottom of page 4, after the administration of cautions and statements about his rights, and before he was asked questions about the substance of the allegations.
Notwithstanding that, Detective Sergeant Bull was not present at the outset of the interview, it was he who arrested him at the end of the interview, to be taken back to the Murgon Police Station for questioning.
Constable Ryan accepted that no caution had been administered to the defendant before the recording device was activated. However, after activation, he was cautioned in terms of section 34 of the Code, and told that he had the right to have a friend, relative or lawyer present. He declined this opportunity.
I accept that in warning the defendant Constable Ryan attempted to explain the warnings in more simple language, as appears at pages 3 and 4 of the transcript.
However, the responses by Mr Clevens to this were merely, "Yeah". Constable Ryan did not proceed to clarify whether Mr Clevens really understood the warning and rights in accordance with the guidelines under 2.14.11(iii) of the Police Operational Manual. That is, he did not break the warning down into smaller component parts and asked Mr Clevens to explain his understanding of what was being said to him. Also, the warnings and statements of rights were delivered in a fast pace. I accept that this is consistent with the way in which Constable Ryan speaks, as I observed during his evidence.
Mr Clevens was also told that he could have the Aboriginal and Torres Strait Islander's Legal Service present if he wanted them. Again, this was declined. By contrast, in the later interview with Detective Sergeant Bull, he requested the presence of Brad Taylor, who was believed to be from the Aboriginal and Torres Strait Islander's Legal Service, to be present during that interview. This can be looked at in either of two ways. Either he understood his rights, as explained to him and made a choice or he did not understand what Constable Ryan said to him about being able to have that legal organisation present if he wanted.
I note that Constable Ryan's evidence was that in two, three or four previous interviews he had with Mr Clevens, he had never asked for ATSILS to be present, but had asked for a support person to be present on at least some of those occasions. A lawyer, a friend or relative if present during the interview, would have been a support person. However, as I have indicated, Mr Clevens indicated that he did not require any such support person to be present.
In those circumstances, section 36(4) of the Code required that Constable Ryan must inform him that he may have a support present during the questioning. By virtue of section 36(5), Constable Ryan must give such information in substantial compliance with the terms of that provision concluding with the question, "Do you want a support present?"
It seems to me that this section is designed to give a person who has indicated they do not wish to telephone or speak to a support person or arrange for a support person to be present to reflect further upon this before making a final decision. In this case, neither section 36(4) or section 36(5) was complied with.
As I said in my ruling on the applications on behalf of Mr Bligh, it is my view that despite the evidence given by Constable Ryan and Detective Sergeant Bull about their understanding of Mr Clevens understanding of the cautions and the rights which were given to him based on their knowledge of his education, other experience with him, or information about him from others, what is decisive, so far as section 420(2) of the Act is concerned is the fact that Mr Clevens was told he could have ATSILS present.
It is that section which provides that unless a police officer is aware that a person has arranged for a lawyer to be present
during questioning, the police officer must inform the person that a representative of a legal aid organisation will be notified that the person is in custody for the offence and as soon as reasonably practicable, notify or attempt to notify a representative of the organisation.
Section 420(3) provides that, "subsection(2) does not apply if, having regard to the person's level of education and understanding, a police officer reasonably suspects the person is not at a disadvantage in comparison with members of the Australian community generally."
However, I consider that both police officers considered that section 420(2) does apply and that is the decisive matter as to whether they were required to notify him and the Aboriginal and Torres Strait Islanders Legal Service in accordance with section 420(2).
In this regard, Detective Sergeant Bull accepted that Mr Clevens was a relevant person and that in his dealings with the defendant during the record of interview he was conscious of the requirements of section 420(2) because he was satisfied that those provisions applied to him. He said this is why he had given him the opportunity in that record of interview, or someone from the Aboriginal and Torres Strait Islanders Legal Service to be available to speak to him.
As I also said in my ruling on the Bligh application, it is also my interpretation of that section that if Constable Ryan, and later Detective Sergeant Bull, was obliged to notify that legal service, the questioning must be delayed for a reasonable time to notify it, the Legal Aid organisation, for the purposes of the Act. At least if a representative of that organisation, whether or not a lawyer or a field officer was available, it is not sufficient that this be done after the record of interview without giving an opportunity for the interviewee, in this case Mr Clevens, to speak to a lawyer or field officer from that Legal Aid organisation. This is because the purpose of notifying the organisation is that one of their lawyers or field officers will attend if available.
I consider that in accordance with this, where a notification is made and a lawyer or field officer is available in accordance with section 420(2) the interview must be delayed for a reasonable time for this purpose. If it were otherwise an indigenous person who does not ask for a lawyer will be in a worse position than an indigenous person who does ask for a lawyer, or, in fact, a non-indigenous person who does so. This would be despite the purpose of section 420 being to provide greater protection for Aboriginal and Torres Strait Islander people. It would also be despite the fact that the section applies where the person has not arranged for a lawyer to be present.
Detective Sergeant Bull also accepted in his evidence that the interview is to be terminated and delayed for a reasonable period of time to allow someone from the Aboriginal and Torres Strait Islanders Legal Service to come and speak to a person such as Mr Clevens.
At the time of questioning of Mr Clevens by Constable Ryan, no arrangement had been made by Mr Clevens for a lawyer to be present. Accordingly, section 420(2) of the Act applied. This means that Constable Ryan and Detective Sergeant Bull should have terminated the interview and attempted to notify the Aboriginal and Torres Strait Islanders Legal Service, and delayed the interview for a reasonable time to give Mr Clevens the opportunity to speak to a lawyer or a field officer from that service. Mr Clevens should also have been told that this would happen.
I find that at this time, Mr Clevens in reality was in custody in relation to this offence, because it is clear in the circumstances that the police officers had no intention in releasing him after he was located until they had finished questioning him. He was interviewed at Watt Street as a suspect for the offence of arson, based on information from Mr McLeod, and also, according to Detective Sergeant Bull, some further information obtained from his sister. This occurred, although he denied his involvement in the arson.
By contrast, although Mr Tapau had also been nominated as being involved by Mr McLeod, and also denied his involvement, he was treated as a witness, after having implicated both Mr Clevens and Mr Bligh. As I described this on a number of occasions during the course of legal argument, I consider that the investigating officers were cherry picking as to who would be the witnesses and who would be the defendants in this case, and they had determined by the time they arrived at Watt Street, that Mr Clevens would be a suspect rather than a witness.
It also follows from the application of section 420(2) that section 36(6) of the Code would apply, and Constable Ryan and Sergeant Bull were therefore required to arrange for a support person to be present. A lawyer or a field officer from the Aboriginal and Torres Strait Islanders Legal Service would have fulfilled that requirement. This was also not done. Therefore, I find that the initial interview by Constable Ryan at Watt Street with Mr Clevens was in breach of section 420(2) of the Act, and sections 36(4), (5) and (6) of the Code.
These breaches continued into the record of interview which commenced at 2.15 p.m. and was conducted by Detective Sergeant Bull. I consider that like Constable Ryan, Detective Sergeant Bull also rattled through the caution and rights at a pace. Significantly, at page 4 of the transcript, he failed to substantially comply with section 34 of the Responsibilities Code which sets out the terms, which must be used to advise a person being questioned of the right to communicate with friend, relative or lawyer. This is because he did not ask the vital question, "Is there anyone you wish to telephone or speak to?" This robbed the statement of rights of any meaningful effect.
Mr Clevens had no chance at this stage, even if he wanted to, to nominated a support person to be present, whether that person be a lawyer, a friend or relative.
Like Constable Ryan, Detective Sergeant Bull told Mr Clevens that he had the right to telephone or speak to someone from ATSILS. If someone from that legal aid organisation had attended, this person, if a lawyer, could also be a support person and perhaps that would have addressed this previous failure. This would also have been the case if a field officer was available to attend from the legal aid organisation.
As with Constable Ryan asking the question at an earlier stage as to whether he wished to speak or have present someone from the Aboriginal and Torres Strait Islander's Legal Service, I consider that the fact Detective Sergeant Bull informed Mr Clevens of this right, is decisive in concluding that section 420(2) applied requiring Detective Sergeant Bull to notify the Aboriginal and Torres Strait Islander's Legal Service of the situation. In fact, as I have already observed, Detective Sergeant Bull conceded as much in his evidence. I note that at this stage Mr Clevens had been in custody for about four and a-quarter hours. Even more significantly at this stage, the defendant nominated Brad Taylor, who he said was, at ATSILS, as the person he wished to contact.
He had been told that the interview would be terminated or suspended for that purpose That, in fact, occurred however, as I have stated, when the interview was resumed about four minutes later, neither Mr Taylor nor anyone else from the Legal Aid organisation was present.
At the time of the termination, Detective Sergeant Bull had said, "Okay, Brad Taylor. Righto. I'll get onto him. I'll have to stop the interview." In his evidence-in-chief, at page 2-104, Detective Sergeant Bull explained the absence of Mr Taylor in this way; "He wanted to speak to Brad Taylor and at that point he asked, as I said, 'Is it Saturday? They wouldn't be open. I'll tell you what happened,' and then he just rattled off this."
What he was alleged to have rattled off is what was written by Detective Sergeant Bull on a manila folder and which he gave Mr Clevens the opportunity to adopt immediately on the interview resuming. What Detective Sergeant Bull was saying is that after the interview was suspended, Mr Clevens asked whether it was Saturday and when he responded in the affirmative, Mr Clevens said that the Aboriginal and Torres Strait Islander Legal Service would not be open and he went on to say that he would tell Detective Sergeant Bull what happened.
This was covered when the interview was resumed by the following questions:
Sergeant Bull: "During the time that the tape was off, Mikey, I asked you if you wanted me - if you wanted to ring"‑‑‑‑‑ Clevens: "ATSILS."
Sergeant Bull: "ATSILS, okay. Originally you said that then when I turned the tape off you said, 'Oh, is it Saturday?' I said, 'Yeah' and you said, 'Oh well, they won't be working.' "Did you want - did you want to continue on with the interview?"
Clevens: "Yeah."
It was after that that Detective Sergeant Bull gave Clevens the opportunity to adopt or reject the information contained on the manila folder as being information that he gave to Detective Sergeant Bull during the period of suspension. Ms Dennis, in her submissions, relies on the fact that it was the defendant who nominated ATSILS to Detective Sergeant Bull during that conversation, as indicating that he understood what was being said to him during the interview and therefore, understood his cautions and rights when they were administered to him.
Although Detective Sergeant Bull was prepared to proceed with the interview on the basis that the defendant was now saying that he wished to continue with it, the situation is that where section 420(2) applies, Mr Clevens' attitude about this was irrelevant. Detective Sergeant Ryan should still have terminated the record of interview so that an attempt could be made to advise someone from the Legal Aid organisation that Mr Clevens was in custody for the offence to provide the opportunity for Mr Clevens to receive advice from a lawyer or a field officer from that organisation.
In addition, Detective Sergeant Bull should have complied at least with section 36(6) of the Code by ensuring that a support person was present. In my view, the failure by two experienced police officers to comply with the provisions of the Act and the Code that I have identified involved a reckless cutting of corners.
Constable Ryan had five years' experience as a police officer in Murgon. Detective Sergeant Bull had four years' experience there. Each gave evidence that they were aware of their responsibilities in relation to ensuring that indigenous persons, who would be regularly interviewed there, were protected during questioning by virtue of the legislative provisions that I have referred to.
It is not necessary for me to consider whether their conduct was unfair as identified in R v Swaffield [1998] 192 CLR 159 at 189 in the sense that Mr Clevens' right to a fair trial may be jeopardised because the admissions were obtained in circumstances which affect the reliability of the statements. I consider that exclusion is warranted, in this case on the grounds of the exercise of the public policy discretion which was originally identified in R v. Ireland [1978] 52 ALJR 561 at 569, and has been expressed in the principles of the High Court of Australia decision of Bunning v. Cross [1978] 58 ALJR 561 at 569.
In this case, as I have found, I consider that two police officers experienced in investigating matters involving indigenous persons in Murgon and the surrounding area, have engaged in a reckless disregard of the requirements of the Act and the Code.
In the case of Constable Ryan, I come to this decision in the context also of my conclusion that he acted in a similar way in respect to Mr Bligh. It is significant in this regard, that he said that the approach that he adopted to conducting the interviews in this case is in accordance with his normal approach to questioning indigenous people.
It is relevant that the requirements that were not complied with could easily have been complied with in this case and the failure to comply with these requirements was in circumstances where the Act and the Code seek to narrowly restrict the police in their power. These are circumstances favouring the rejection of the evidence.
It has been held that the Act is a code which requires strict compliance. Under section 7, it is Parliament's intention that a police officer should comply with the Act in exercising powers and performing responsibilities under it and sanctions apply for contraventions which, at a minimum, involve a breach of discipline.
I observe that the mere fact that cautions and rights were explained to Mr Clevens, and he responded generally with words like "Yes" and "Yeah" does not satisfy me that he understood the real implications of everything contained in the cautions and rights about which he was told. That is particularly so in a case where what he might consider to be exculpatory answers in fact remain statements against his interest as part of a circumstantial case or as the basis of an argument that he has demonstrated a consciousness of guilt of his offending.
It is because of subtleties of that nature that the
opportunity to obtain legal advice about the potential
consequences of engaging in an interview with the police
provides a necessary safeguard.
Further, as stated in Pollard v The Queen (1992) 176 CLR 177
by Deane J at 203 to 205:
"In the balancing process to resolve that conflict, the weight
of competing considerations of public policy will vary
according to the circumstances of the particular case. The
weight to be given to the public interest in the conviction
and punishment of crime will vary according to the heinousness
of the alleged crime or crimes and the reality and
unequivocalness of the alleged confessional statement.
The weight to be given to the principal considerations of
public policy favouring the exclusion of the evidence will
vary according to the other factors of which the most
important will ordinarily be the nature and seriousness of the
unlawful conduct engaged in by law enforcement officers.
At one extreme are cases in which what is involved is an
isolated and merely accidental non-compliance with the law or
some applicable judicially recognised standard of propriety.
In such cases, particularly if the offence is a serious one,
it would ordinarily be quite inappropriate to exclude evidence
of a voluntary confessional statement on public policy
grounds.
The critical question in those cases will be whether the
evidence should or should not be excluded on the ground that
its reception would be unfair to the accused. At the opposite
extreme are cases where the incriminating statement has been
produced by a course of conduct on the part of the law
enforcement officers which involved deliberate or reckless
breach of a statutory obligation imposed by the legislature to
regulate police conduct in the interests of the protection of
the individual and the advancement of the due administration
of justice.
Such cases manifest 'the real evil' at which the discretion to
exclude unlawfully obtained evidence is directed. In such
cases the principal considerations of public policy favouring
exclusion are at the strongest and will ordinarily dictate
that the judicial discretion be exercised to exclude the
evidence."
I consider that for the reasons I have given and taking into
account also the nature of the offence charged which is a
serious one that there has in this case been a reckless breach
of a statutory obligation which should have been well
understood by police officers of experience working in the
Murgon area.
For that reason, I exercise my discretion to order that the
recorded interview between Mr Clevens and Plain Clothes
Constable Joshua Ryan on 12 November 2011 at 9.40 a.m. at 46
Watt Street, Murgon be excluded from the trial and also that
the record of interview on that date at 2.15 p.m. between
Mr Clevens and Detective Sergeant Bull at the Murgon Police
Station be excluded from evidence at the trial.
Ms Dennis, do you need time to consider that ruling?
MS DENNIS: No, thank you, your Honour. If I might have the
return of the indictment?
HIS HONOUR: Yes, Ms Dennis?
MS DENNIS: Sorry, your Honour. I've endorsed the indictment
to the effect the Crown will not further proceed upon it in
relation to the defendant Michael John Clevens.
HIS HONOUR: That's the only indictment in relation to him,
isn't it?
MS DENNIS: For these offences, yes.
HIS HONOUR: Yes.
MS DENNIS: Yes.
HIS HONOUR: Yes, the prosecution having endorsed the
indictment that it will not further proceed upon it in
relation to Mr Clevens, he, like Mr Bligh, is discharged in
relation to this charge.
Now, is there any reason holding him in custody beside his
remand for this offence?
MS DENNIS: Yes, your Honour, there is.
HIS HONOUR: All right. So I need make no further order;
he'll simply be returned to custody in relation to the other
matters?
MS DENNIS: Yes, your Honour.
MS CHEKIROVA: Your Honour, in this regard if I may - I
probably would - I probably have very little knowledge in
relation to summary offences, but - no, I'm - sorry, your
Honour. I withdraw it.
HIS HONOUR: Yes, all right.
MS CHEKIROVA: I was going to make an application for bail,
but-----
HIS HONOUR: It may have to be made in another Court.
MS CHEKIROVA: Yes, your Honour.
HIS HONOUR: Yes, all right.
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5
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