R v Clevens - [2012] QDC 144

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Clevens

Details

AGLC: R v Clevens [2012] QDC 144
Case: [2012] QDC 144
Decision Date: 8 June 2012 (ex tempore)

CaseChat Overview and Summary

In the matter of R v Clevens, the defendant, Mr Clevens, was before the court on a charge of possessing a firearm. The central issue in the case was the admissibility of two recorded interviews conducted with the defendant by police officers, Plain Clothes Constable Joshua Ryan and Detective Sergeant Bull. The court was required to determine whether these interviews were obtained in a manner that violated the defendant's legal rights, specifically under the provisions of the Crimes (Administration of Justice) Act 1987 (Qld).

The legal issues before the court were whether the interviews were conducted in accordance with the statutory requirements set out in the Act, particularly regarding the presence of a legal advisor, the recording of the interview, and the voluntariness of the defendant's statements. The court needed to examine the circumstances under which the interviews were conducted and assess whether they were free from any undue influence or coercion that might render the statements inadmissible.

The court found that the recorded interview with Plain Clothes Constable Joshua Ryan was conducted without a legal advisor present, which was a breach of the statutory requirements. Consequently, the court ruled that this interview was inadmissible as evidence. Regarding the second interview with Detective Sergeant Bull, the court determined that while a legal advisor was present, the defendant's statements were not entirely voluntary due to certain circumstances surrounding the interview. As a result, the court decided that this interview too was not admissible.

The court ordered that both interviews be excluded from evidence at the trial, ensuring that the defendant's rights under the statute were upheld.

Orders

Orders of the court

1. 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.

2. 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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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.