R v Collins and Taylor

[1997] QCA 210

IN THE COURT OF APPEAL	[1997] QCA 210
SUPREME COURT OF QUEENSLAND

C.A. No. 236 of 1996

Brisbane

Before Fitzgerald P.
Davies J.A.
Fryberg J.

[R. v. Collins and Taylor; ex parte A-G]

T H E Q U E E N

v.

RICHARD LESLIE COLLINS and

STEVEN COLIN TAYLOR Respondents

REFERENCE BY ATTORNEY-GENERAL OF QUEENSLAND

UNDER SECTION 669A OF THE CRIMINAL CODE

Fitzgerald P.
Davies J.A.

Fryberg J.

Judgment delivered 25 July 1997.

Separate reasons for judgment of each member of the Court; Davies J.A. and Fryberg J. concurring as to the orders made, Fitzgerald P. dissenting in part.

QUESTIONS 1, 2 AND 3 ARE ANSWERED YES.

CATCHWORDS:	CRIMINAL LAW - Attorney-General’s reference - incriminating admissions by 17 year old respondent - respondent not cautioned and had earlier indicated wish to obtain legal advice - admissions not taped - whether open to trial judge to exclude evidence of admissions.
Counsel:	Mr Rutledge for the Attorney-General of Queensland. Mrs Richards for the respondents.
Solicitors:	Queensland Director of Public Prosecutions for the Attorney-General of Queensland Legal Aid Office (Qld.) for the respondents.
Hearing Date:	18 September 1996.

REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 25 July 1997

This matter comes before the Court as a reference by the Attorney-General under s. 669A of the Criminal Code, and follows the entry by the prosecutor of a nolle prosequi in respect of an indictment charging Richard Leslie Collins and Steven Colin Taylor with unlawfully causing grievous bodily harm to one Michael Guthrie on 17 April 1994 or, alternatively, unlawfully assaulting Guthrie in company with each other causing him bodily harm. The Court is confined by the terms of the Attorney-General’s reference, which refers three specific points for the Court’s opinion.

According to the reference, Collins and Taylor were conjointly charged with the offences referred to above and their trial commenced in the District Court at Brisbane on 15 April 1996. The prosecution case was that, on 17 April 1994, a group of young men, including Collins and Taylor, attacked Guthrie and occasioned him injuries which amounted to grievous bodily harm. At the commencement of the trial, after arraignment but before the prosecution opening, counsel for Collins objected to some of the evidence intended to be led by the prosecution from the investigating police officer, Gregory John Hanrahan. No evidence was given by any witness, and the objection was argued on the basis of a statement provided by Hanrahan. In the exercise of his discretion, the trial judge ruled that, although a passage in the testimony expected to be given by Hanrahan was admissible, “it would not be fair in all the circumstances” to receive it into evidence.

According to Hanrahan’s statement, he first spoke to Collins and a group of his associates outside a local Community Centre some weeks after the assault on Guthrie. He ascertained the names and addresses and dates of birth of some of them, including Collins, who was 16 at the time. None admitted any involvement in an assault on Guthrie, and although Hanrahan said, “I’d like for you fellows to come down to the station this week sometime so that I can talk to you about the matter.” or words to that effect, no arrangements were made for that to occur and no- one attended.

Again according to Hanrahan, he encountered Collins some months later, when he asked Collins whether he would be prepared to accompany Hanrahan to the Redcliffe Police Station so that he might conduct a record of interview with Collins regarding the assault on Guthrie. Collins replied, “No, I want to get some legal advice first,” or words to that effect. After remarking that Collins had had some months to get legal advice and ascertaining that he had not done so, Hanrahan arrested Collins, escorted him to the Redcliffe Watchhouse and charged him. The following passage from Hanrahan’s statement contains the evidence which the trial judge refused to receive:

“At the time of charging the defendant, I read the charge out aloud to the defendant, and at the conclusion, I said to the defendant Collins, ‘Do you understand that charge now?’

The defendant Collins replied, ‘Yeah, that was one on one. He wanted to fight me. We’ve never got on.’

I said to the defendant, ‘Who do you mean?’
The defendant replied, ‘Guthrie.’ ”

The reference requires this Court to accept that, without the evidence which the trial judge refused to receive, which can only mean all of that evidence, “there was insufficient evidence safely to ground a conviction of Collins on the issue of identification”.

The points referred for the Court’s opinion are:

“1. Was His Honour’s discretion to exclude evidence on the basis of unfairness to the respondent COLLINS enlivened in respect of the evidence the subject of objection?

2. If the discretion was enlivened, then did His Honour misdirect himself as

to the proper tests and considerations to be applied before excluding confessional
evidence on the basis of unfairness to an accused?

3. If the discretion was enlivened, on the material before His Honour was it open to a Court to conclude that the discretion should be exercised as it was?”

I am unable to identify any basis upon which question 1 could be answered in the negative, and, in his oral submissions to this Court, the prosecutor admitted that he was “in a position of difficulty” in relation to the second question asked by Hanrahan and Collins’ answer, “Guthrie”. The decision of this Court in R. v. Davidson (C.A 203 of 1996, unreported, 20 December 1996) supports the view that the trial judge had a discretion to reject at least that part of the evidence. Further, I do not doubt that he also had a discretion to reject Collins’ alleged statement when he was asked whether he understood the charge. Unfortunately, the point at which, and the manner in which, the objection was argued below means that potentially important details were not explored. However, Hanrahan had arrested and charged a 17 year old who had indicated a wish to obtain legal advice before speaking to police and it is clear that he could have cautioned Collins before asking him either question. Further, there was no witness to, or audio or video recording of, the alleged incriminating admissions.

According to the prosecution argument, the trial judge exercised his discretion by reference to the following matters:

“-	the respondent was 17½ years of age at the time ...;
-	the respondent’s only prior contact with police was a general conversation some months previously ...;
-	the alarming experience (especially for a young person) of being deprived of liberty and placed in custody ...;
-	the respondent had earlier stated that he did not wish to discuss the matter until he obtained legal advice ... .”

Assuming that to be so, it was not explained how or why his Honour erred in principle; the prosecution argument was based entirely on the erroneous proposition that Collins was not questioned by Hanrahan but made “voluntary and spontaneous” admissions.

It follows from what has been said that question 2 should be answered in the negative, and question 3, like question 1, should be answered in the affirmative.

In the circumstances, it is unnecessary to consider the respondent’s submission that the points referred for the Court’s opinion were not “points of law”, although this is another case in which a reference under s. 669A was inappropriate. On the assumption that the questions should be answered, in my opinion questions 1 and 3 should be answered “yes” and question 2 answered “no”.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 25 July 1997

This Attorney’s reference under s.669A of the Criminal Code raises questions about the discretionary exclusion by a trial judge of evidence of an admission against interest by an accused. The accused was Richard Leslie Collins who was on trial for an assault occasioning grievous bodily harm to Michael Guthrie on 17 April 1994. The application for exclusion of the evidence was made before it was led, on the basis of a written statement by a police officer of an admission made by the accused immediately on being charged with that offence on 2 December

1994.  The circumstances in which the admission was made are as follows. The accused, who at the time of being charged was 17½, had been first briefly

interviewed by a police officer in relation to this matter on 7 May 1994. He was then invited, along with some other youths interviewed at the same time, to come to the police station that week to talk about the matter. He did not respond to that invitation. On the night on which he was arrested and charged he was asked by the same police officer whether he would be prepared to accompany him to the police station for a record of interview. He declined, saying that he wanted to get some legal advice first. He was then arrested, taken to the police station and charged. Then followed the passage of evidence which the police officer proposed to give and which the learned trial Judge ruled, in the exercise of his discretion, should not be given.

"At the time of charging the defendant, I read the charge out aloud to the defendant, and at the conclusion, I said to the defendant Collins, ‘Do you understand that charge now?’

The defendant Collins replied, ‘Yeah, that was one on one. He wanted to fight me. We’ve never got on.’

I said to the defendant, ‘Who do you mean?’
The defendant replied, ‘Guthrie.’ "

Without that evidence, or, as I would construe the reference, some part of it, there was insufficient evidence safely to ground a conviction, presumably because there was no other evidence which sufficiently identified Collins as the person who committed the offence.

The learned trial Judge concluded that it "would not be fair in all the circumstances to use his words against him." These circumstances appear from his Honour’s reasons to have been the accused’s age, the fact that he had indicated that he did not wish to discuss the matter until he had obtained legal advice and that he was in custody at the time he made these admissions. Perhaps in view of the accused’s earlier statement that he wished to obtain legal advice before discussing the matter his Honour had in mind also the fact that the accused had received no warning before he gave his answers, that he need not say anything. The failure to warn was relied on in submissions to his Honour on the accused’s behalf.

Although his Honour’s ruling and this reference relate to the whole of the passage I have quoted, it does contain two admissions, the first in the second paragraph and the second in the fourth paragraph. In the first paragraph the police officer said that he read the charge out to the accused. That would presumably have indicated to him that Guthrie was the person whom he was charged with assaulting. Consequently his answer to the question "Do you understand that charge now?", constituted an admission that he had engaged in a fight with Guthrie, thereby identifying him as Guthrie’s assailant. I mention this because, even if there was some impropriety involved in asking the second question which resulted in unfairness justifying exclusion of his answer contained in the fourth paragraph, and I do not think there was, it would not necessarily have followed that his answer to the first question should also have been excluded.

The learned trial judge considered that the question before him was:

"... whether in all the circumstances it would be fair to use his own words against him immediately he’s been told that he has been charged with a serious offence."

His Honour therefore either made no distinction between the two admissions or, as I do, considered that the first admission was sufficient to identify Collins as Guthrie’s assailant.

There are two sometimes overlapping discretions on the basis of which voluntary confessional evidence may be excluded by a trial judge. The first is that of unfairness; that is, whether the reception of the evidence would be unfair to the accused in the sense of jeopardising his right to a fair trial.[1] The second involves the balancing of two competing requirements of public policy, the need to bring to conviction those who commit criminal offences and the public interest in the protection of the individual from improper or unlawful treatment.[2] As appears from his Honour’s ruling it is the former discretion which is in issue here. That also appears from the questions asked in the reference which are:

[1]           R. v. Lee (1950) 82 C.L.R. 133 at 150-1; Cleland v. R. (1982) 151 C.L.R. 1 at 18, 30; Van der

[2]           Bunning v. Cross (1978) 141 C.L.R. 54 at 74-5; Cleland at 31.

1.          Was his Honour’s discretion to exclude evidence on the basis of unfairness to the respondent COLLINS enlivened in respect of the evidence the subject of objection?

2.          If the discretion was enlivened, then did his Honour misdirect himself as to the proper tests and considerations to be applied before excluding confessional evidence on the basis of unfairness to an accused?

3. If the discretion was enlivened, on the material before his Honour was it open to a court
to conclude that the discretion should be exercised as it was?
The characteristic of evidence which will render it unfair to the accused to admit it will

generally be its reliability.[3] However there may be cases where to admit confessional evidence would be unfair, not because it is unreliable, but because no confession might have been made if the investigation had been properly conducted; that is, where impropriety causes a person to make a confession which he would not otherwise have made.[4] These will be cases where the unfairness and public policy discretions overlap; where, for example, the illegal or improper means by which admission is obtained both renders its admission unfair against an accused and is of such magnitude that the balancing of the public interests favours its rejection.[5]

[3]           Lee at 153; Cleland at 30, 32, 36; Van der Meer at 666.

[4]           Duke v. R. (1989) 180 C.L.R. 508 at 513.

[5]              See, for example, Pollard v. R. (1992) 176 C.L.R. 177 at 184, 197, 209, 224.

In the present case there was no question of any illegal conduct on the part of the police. Nor did any of the circumstances relied on in the learned trial Judge’s reasons involve any impropriety on the part of the police. The only possible acts or omissions which, in my view, could arguably be improprieties were a failure on the part of the police officer to caution the accused before asking the questions, "Do you understand that charge now?" and "What do you mean?" and a failure to tape record the very brief interview in which the accused was charged.

As to the first of these, I do not think there was any factual basis upon which the learned trial Judge could have concluded that there was any impropriety. On the contrary, at least with respect to the first question, the police officer was not embarking on a questioning of the accused; he was doing no more than ensuring that the accused understood the offence with which he had been charged. And as I have already indicated, it was the answer to this question which identified the accused as Guthrie’s assailant. However I do not think that there was any basis for concluding that there was any impropriety in the circumstances in asking the second question. No doubt, with the benefit of hindsight, it would have been better to administer a caution to the accused after he had answered the first question, but I do not think that the failure to do so in the circumstances could have constituted an impropriety. Nor did either of these omissions cast any doubt on the reliability of the accused’s answers. And even if, contrary to the view I have expressed, it was open to conclude that either omission was improper, the impropriety could not, in the absence of consequential risk of unreliability, have rendered the admission of the evidence unfair.

The failure to record the conversation in which the accused was charged and the alleged admissions made was, in my view, improper. The accused was only 17½ and immediately before being arrested had indicated to the police that he wished to seek legal advice before speaking to them. Nevertheless, he was placed in that special position of vulnerability of an accused to fabrication which was the basis for the rule stated in McKinney v. R.[6]; that is, he was involuntarily held and, because there was no independent witness or recording, deprived of the possibility of any corroboration of any denial of the making of the alleged admissions. I note also that counsel for the accused raised the question of fabrication before his Honour, at least indirectly, by pointing to the fact that Guthrie said he did not know the accused.

[6] (1991) 171 C.L.R. 468 at 478.

The failure to record these conversations, or alternatively to allow the accused to have some independent person present, was an improper omission, having regard to the accused’s earlier statement that he wanted to obtain legal advice before he spoke to the police, his age and the fact that he was in custody and alone. In these circumstances that failure affected the reliability of this evidence which, it also appears, may have been contradicted by Guthrie’s statement that he did not know the accused.

For those reasons I would answer questions 1, 2 and 3, yes.

REASONS FOR JUDGMENT - FRYBERG J.

Judgment delivered 25 July 1997

The three questions referred to the Court by the Attorney-General have been set out in the judgments of the other members of the Court. They are said to contain points of law within the meaning of s. 669A(2) of the Criminal Code. If that is so, then the point in the third question would not seem to differ from that in the first. As the argument was developed, all three questions seem to have been directed to the issue of whether it was open to the trial judge to exercise his discretion in the way he did. That does not involve any question of principle, nor raise a matter of significance in future cases. Rather, it involves little more than questions of fact and degree. Moreover, as the President has pointed out, the point at which and the manner in which the objection was argued in the District Court mean that potentially important details were not explored. For these reasons, I would have refused to answer the questions.

In the light of the views expressed by the other members of the Court in this case, it is plainly undesirable that I take that course. On the basis of the material presently available, I agree with the answers proposed by Davies JA and with His Honour's reasons for them.

It must be emphasised that these answers do not express any view as to how the discretion should be exercised in this case. Moreover, if further facts become available, the answers here given may have little or no practical utility. In particular, it should clearly be understood that this decision does not mean that an accused person, even a young one, cannot be charged until recording equipment is available.

Meer v. R. (1988) 62 A.L.J.R. 656 at 666.