R v. Clevens
[2007] QDC 67
•2 April 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
R v Clevens [2007] QDC 067
PARTIES:
THE QUEEN
V
WILLIAM ROBERT CLEVENS
FILE NO/S:
3537/06
DIVISION:
Crime
PROCEEDING:
s 590AA Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
2 April 2007
DELIVERED AT:
Brisbane
HEARING DATE:
8 March 2007
JUDGE:
Tutt DCJ
ORDER:
1. The record of interview, Exhibit 1 in this application, be admitted in evidence in any proceeding against the Applicant as there is no basis for finding that the confessions contained therein should be excluded in breach of s 10 of the Criminal Law Amendment Act 1894 or as having been obtained involuntarily at common law.
CATCHWORDS:
CRIMINAL LAW – pre-trial hearing – where Applicant sought to exclude admissions made by him against his interests – where police accused of offering an inducement not to oppose bail –– where Applicant taken for “drive around” with police – whether confessions of Applicant voluntary – turns on own facts and assessment of credibility.
Criminal Code Act 1899 s 590AA.
Criminal Law Amendment Act 1884 s 10.
Police Powers and Responsibilities Act 2000.
Police Powers and Responsibilities Regulation 2000 s 37.
COUNSEL:
Mr C. Cassidy for the Office of the Director of Public Prosecutions.
Mr T. Ryan for the Applicant.
SOLICITORS:
Mr C. Cassidy instructed by the Office of the Director of Public Prosecutions.
Mr T. Ryan instructed by the Aboriginal and Torres Strait Islander Legal Service.
Introduction:
This is an application by William Robert Clevens (“the Applicant”) pursuant to s 590AA of the Criminal Code (“the Code”) for a pre‑trial ruling to exclude the admissions made by him against his interest in an electronically recorded formal interview including that recorded in a “drive around” with the Queensland Police Service on 25 April 2006, on the basis that such confessions were not made voluntarily and /or it would be unfair to admit them.
The basis for the application is that the confessions were made involuntarily in breach of s 10 of the Criminal Law Amendment Act (Qld) 1894 in that “…… such confessions were the product of an inducement offered to the Applicant by the police officers before the recorded interviews and that thereby the confessional statements were in breach of s 10 of the Criminal Law Amendment Act (Qld) 1894 (or) alternatively the evidence of the confessions should be excluded in the exercise of the court’s discretion.”[1]
[1] Paragraphs 2 and 3 of Applicant’s written outline of argument.
Background:
The evidence from the chief investigating officer, Sergeant Christopher John Toohey (“Toohey”) of the Dutton Park Criminal Investigation Branch (“the station”) is that on 25 April 2006 he was advised by the uniform staff of the station that “… there was an offender at the station which they required CIB attendance.”[2]
[2] Page 1 of CJ Toohey’s statement dated 8 May 2006.
The “offender” was the Applicant who had been arrested on a number of charges allegedly committed earlier that morning.
At that time, Toohey was more interested in another suspected offender named “Henry” who was believed to have committed a number of breaking and entering offences in and around Brisbane, and with whom the Applicant had been associated.
Toohey’s evidence was that in an unrecorded conversation between Toohey and the Applicant in the presence of plainclothes Senior Constable Sala shortly after Toohey arrived at the station, the topic of “Henry” had been raised as was the prospect of “doing a drive around” to various locations which were the subject of a number of “breaking and entering” offences in which “Henry” was involved.
It was shortly after this unrecorded conversation with the Applicant that the formal electronically recorded record‑of‑interview (“the interview”) commenced, which is Exhibit 1 in the proceedings.
The evidence:
At the commencement of the interview the Applicant was given the regulatory caution of his right to silence[3] and the interview proceeded.
[3] Section 37 of the Police Powers and Responsibilities Regulation 2000.
After commencing the interview at the station at 11:59am, the “drive around” phase commenced at 12.33 pm[4] and the interview was continued by way of a cassette recording held by one of the officers in the motor vehicle as the “drive around” proceeded.
[4] Record of‑interview p 8 line 25.
During the course of the “drive around”, the Applicant made various admissions in respect of breaking and entering offences of various premises identified by him.
It was conceded by Toohey that the tape was “… turned off and on during the course of the drive around” when they were between locations but that there was no relevant conversation between the Applicant and Toohey during these breaks in the recording process.
It was put to Toohey in cross‑examination:
“See, when you first spoke to Mr Clevens, you said to him words to this affect, didn’t you, ‘That you’re going’ – you said to him: ‘You’re going back to gaol’?-- No.”
…
“You asked him if he wanted to do a clear‑up?-- Yes.”
…
“And you – well he initially I’d suggest, responded to you by saying that he didn’t want to do a clear‑up?-- No. That’s not true.
And you said to him: “Look that’s the only way you’ll get out on bail?”‑‑ No it isn’t. Bail was never brought up.
And it was as a result of you saying that to him that he agreed to go along with a clear‑up, if we put it that way?-- No.
I’m suggesting to you that he never said to you that he’d done a clear‑up before?-- It was adopted on the tape.
And that he said – in fact that he’d never done a clear‑up before?-- I don’t know whether he has or he hasn’t. I’ve never looked into it.
And you told him that you as police officers weren’t supposed to give out any promises to suspects about bail?-- I said that to him?
Yes?-- I don’t recall that. No.”[5]
[5] Transcript page 24 lines 5-7, 22, 33-55.
It was further put to Toohey:
“And you told him to say in the interview that there hadn’t been any promises made to him about bail?-- No. That’s not true.
And that these discussions happened in the interview room before the interview commenced?-- No. Not true.”[6]
[6] Transcript page 25 lines 1-6.
It was further put to Toohey:
“And you said to him that you’d tell the other police officer, presumably you’re referring I’d suggest to a watch‑housekeeper that you should be able – that he should be able to get bail or that he should get bail?-- No. No. Definitely not.”[7]
[7] Transcript page 26 lines 6-9.
The other investigating police officers, who participated in the interview at the station and/or the “drive arounds”, namely Sala, Detective Sergeant Lentakis and Detective Senior Constable Suffolk (who accompanied Toohey and Sala on a second “drive around” on 26 April 2006), essentially corroborated Toohey’s evidence as to the nature and circumstances pertaining to the taking of the interview both at the station and the two “drive arounds”.
The Applicant gave evidence that he was arrested on the morning of 25 April 2006 and taken to the station where he was subsequently interviewed by Toohey and Sala.
He confirmed that when he was in the holding cell “some liaison officer came along and that to tell me to cooperate and that with the police”.[8]
[8] Transcript page 56 lines 42-44.
The Applicant gave further evidence that he was asked if he “… wanted to do a clear‑up”, to which he “initially” said “no”,[9] but then he said that he was told “well, you do a clear‑up and that we’ll – we’ll talk to the prosecution and we won’t oppose bail and then so yeah I done the clear‑up and after that just jump in the car.”[10] The accused also gave evidence that he had not done a “clear‑up” before.[11]
[9] Transcript page 56 lines 42-44.
[10] Transcript page 58 lines 5-8.
[11] Transcript page 58 line 11.
On this point of whether or not the accused had previously participated in a “drive around” to “clear‑up” alleged offences, it was put to the accused in cross‑examination after he had denied that he had “… previously … participated in a drive around with police” – that “… there was an occasion on 5 March 2002 … that you participated in a drive around with the police where you point out a number of houses or units that you had broken to. Do you accept that? I’m suggesting that you firstly took police to an address at 32 Franklin Street, Annerley. Do you accept that? Do you recall taking police to an address at Annerley?-- Yeah. Yeah. Yeah. I do actually. I remember that.” “And then you showed police where you’d dumped two brown wallets?-- Yeah.”[12]
[12] Transcript page 69 lines 11-30.
It was further put to the Applicant that he had gone on a “drive around” with police on other occasions and identified locations where he had broken and entered dwellings, to which he responded that he could not remember but ultimately it was put to him “so it’s clear that you have participated in a drive around with police in the past?-- Yeah.”[13]
[13] Transcript page 71 line 15.
The Applicant further admitted in cross‑examination that he had “appeared before the courts on about 18 different occasions … mostly for offences of dishonesty … a total of about 84 offences … largely break and enters of houses … being convicted of stealing motor vehicles about 17 different times.” It was further put to him that “these offences that you told the police about during the drive around on 25 April you undoubtedly committed those offences?-- Yeah.”[14]
[14] Transcript page 64 lines 30-55.
It was also put to the accused that he had “… in the past … cooperated with police”, to which the Applicant replied “I haven’t,”[15] but he then conceded that he had previously made “… admissions about offences …” he had committed but that he had “… never done clear‑ups” and that he “… don’t do a drive around”.[16]
As indicated in paragraph [19] above, the Applicant recanted on this statement in further cross‑examination.
[15] Transcript page 67 lines 45-47.
[16] Transcript page 68 lines 30-34.
After the interview concluded the Applicant requested he be taken to his Grandmother’s house “to give her a key”, but while the investigating officers were out of the vehicle he escaped from custody but subsequently recaptured.
Toohey’s further evidence was that the Applicant indicated he wished to go on another “drive around” the following day the 26th April 2006 but after “approximately 30 minutes of driving the Defendant stated that he did not wish to this interview. The drive around was terminated……”.[17]
[17] Page 2 of Toohey’s Statement dated 8/5/2006 confirmed by the evidence of Sala and Suffolk at Transcript pages 37 and 54 respectively.
Counsel’s submissions:
It was submitted on behalf of the Applicant that the onus of proof rests with the prosecution to establish that the confessions made were voluntary and this common law principle is reinforced by s 10 of the Criminal Law Amendment Act 1894, which provides that no confession is admissible if it has been induced by some threat or promise and in this application “the Applicant …… raises the contention that there has been an inducement made by Detective Toohey to him in the course of the discussions that occurred before the tape recording was commenced …… before midday on Anzac Day last year”[18] and the nature of the inducement was that the investigating officers would in effect support any application by the accused for bail following his arrest.”
[18] Transcript page 81 lines 3-8.
It is further submitted on behalf of the Applicant that there was “the primary obligation in this case” for the police officers to record electronically “… all of the conversations that they had with this man from the time they started talking with him” rather than conferring with him before commencing the formal record‑of‑interview process.[19]
[19] Transcript page 83 lines 1-5; 20-22.
In summary, it was submitted on behalf of the Applicant that because of the fact that “… experienced police officers have not complied with the obligations to record all of these conversations when they had the opportunity to do so …… would cause the court such unease that the court would not be prepared to be satisfied on the balance of probabilities that there wasn’t an inducement in the present case and in those circumstances ……” any admissions made by the accused “……should be excluded pursuant to s 10 of the Criminal Law Amendment Act 1894”.[20]
[20] Transcript page 88 lines 22-32.
Crown’s submissions:
The Crown submits that “… there is nothing necessarily sinister about the failure to record the initial conversation,”[21] in the circumstances, then prevailing, particularly when they were more interested in pursuing the person “Henry” in whose company the accused had been that morning, and that the investigating officers commenced the formal interview very shortly after such conversation and conducted the interview in accordance with the Police Powers and Responsibilities Code.
[21] Transcript page 89 line 43.
The Crown summarised its submissions by saying “Ultimately in my submission the Crown has discharged its onus on the balance of probability through the evidence of the police and the unsatisfactory nature of the accused’s evidence supported by his own admissions in the record‑of‑interview as to the fact that there was no inducement.”[22]
[22] Transcript page 93 lines 32-39.
The law:
The onus is clearly upon the Crown to establish that a confession is voluntary and must establish this fact on the balance of probabilities once there is evidence raised to challenge its voluntariness.[23] Likewise, the Crown bears the onus on the balance of probabilities to establish that the confession which is challenged by the defence is not inadmissible pursuant to s 10 of the Criminal Law Amendment Act 1894.
[23] Wendo v R (1963) 109 CLR 559 at 572.
Findings:
On review of all the evidence and submissions made by both parties to this application I make the following findings:
(a) the investigating officer Toohey has complied in all respects in a practical sense with the practices and procedures set out in division 7 part 3 of the Police Powers and Responsibilities Act 2000 including the Police Powers and Responsibilities Regulation thereunder;
(b) I accept the evidence of the witness Toohey as an honest and reliable historian of the circumstances surrounding his dealings with the Applicant on 25 and 26 April 2006 in contrast to the evidence of the Applicant, who I found to be unreliable, evasive and contradictory in his evidence.
(c) I do not accept there would be any reason for the witness Toohey to offer the accused any inducement in respect of bail when the overriding objective at the time the inducement was alleged to have been made was to pursue the principal offender “Henry” and in addition the Applicant readily made various admissions during the course of the record‑of‑interview, in respect of his offending behaviour.
(d) The evidence of the witnesses Sala and Lentakis corroborate the evidence of the witness Toohey that there was no inducement made to the accused in respect of bail prior to the interview commencing.
(e) The Applicant’s version becomes even more implausible and incredulous when it is considered that he was prepared to accompany the police officers on a second “drive around” the following day notwithstanding at which time, if his account was to be accepted, he was fully aware and convinced that the investigating officers had reneged on their alleged inducement the day before not to oppose his bail.
It follows therefore that I am satisfied that there was no inducement in respect of bail offered to the accused by the investigating police officers and accordingly there is no basis for finding that the Applicant’s confessional evidence should be excluded in breach to s 10 of the Criminal Law Amendment Act 1894 or as having been obtained involuntarily at common law and therefore unfair.
My order therefore is that the interview Exhibit 1 in this application is able to be admitted in evidence in any proceeding against the Applicant as there is no basis for finding that the confessions contained therein should be excluded in breach of s 10 of the Criminal Law Amendment Act 1894 or as having been obtained involuntarily at common law.
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