R v Cornwall

[1993] QCA 464

IN THE COURT OF APPEAL [1993] QCA 464

SUPREME COURT OF QUEENSLAND	C.A. No. 164 of 1993
Brisbane [R. v Cornwall]

T H E Q U E E N
v.

PAUL GEOFFREY CORNWALL (Appellant)

________________________________________________________________

DAVIES J.A.
PINCUS J.A.

MOYNIHAN S.J.A.

________________________________________________________________

_

J udgment delivered 23/11/1993

REASONS FOR JUDGMENT - THE COURT
________________________________________________________________

_

APPEAL AGAINST CONVICTION DISMISSED
________________________________________________________________

_

CATCHWORDS:	EVIDENCE - CONFESSIONS - Appellant convicted of armed robbery in company - Crown case rested substantially on admissions made in video and audiotaped interview - Appellant initially charged with minor offence and watch-house bail not granted - Whether appellant unlawfully detained when interview conducted - Whether charge of minor offence made in bad faith or impropriety otherwise involved - Whether confessional statements should have been excluded on grounds of unfairness or public policy
Bail Act 1980, ss. 7, 14 Criminal Code, ss. 137, 553 Justices Act, ss. 69
Hallam v. Karger (1985) 18 A.Crim.R. 221
R v. Duke (1989) 63 A.L.J.R. 139 at 141
R v. Foster (1993) 67 A.L.J.R. 550 at 554
R v. Hart (unrep., Qld Court of Appeal, 2.11.93)
R v. McDermott (1948) 76 C.L.R. 501 at 513
R v. Williams (1986) 161 C.L.R. 278
Counsel:	P. Rutledge for the Respondent T. Rafter for the Appellant
Solicitors:	Director of Prosecutions for the Respondent
Legal Aid Office for the Appellant

Date(s) of Hearing: 13 August 1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 164 of 1993
Brisbane
Before	Mr Justice Davies Mr Justice Pincus Mr Justice Moynihan

[R. v. Cornwall]

T H E Q U E E N
v.

PAUL GEOFFREY CORNWALL (Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 23/11/1993

The appellant was convicted of armed robbery in company with actual violence and of an associated offence of the unlawful use of a motor vehicle used to facilitate the robbery. The Crown case against the appellant rested substantially on admissions he made during a video and audiotaped interview recorded after a warning had been given. This evidence was supported by circumstantial evidence relating to the movements of those involved in the robbery and the apprehension of the appellant.

The Commonwealth Bank at Surfers Paradise was robbed at about 10 a.m. on Friday, 4 January, 1991. Two armed men wearing balaclavas left the bank and were pursued by a police officer and a security guard. One of them was shot in the leg by the security guard before the two men left the scene in a Ford motor vehicle driven by a third man. The Crown case was that the appellant was that third man. The getaway vehicle and another vehicle were found abandoned on a vacant allotment near Budd's Beach. The wounded man was located under a house in the vicinity. In the course of extensive police operations in the area where the two vehicles were found, a number of witnesses reported a man emerging from a building site nearby and swimming in a canal in the vicinity of the building site. The Crown case was to the effect that this was the appellant.

The appellant was intercepted by police officers at about midday walking in a street in the vicinity of the building site earlier referred to. He was wearing only a pair of shorts. They were wet. His hands and feet in particular showed signs of prolonged immersion in water.

The appellant agreed to and did accompany police officers responsible for the investigation of the robbery to the Southport police station where his hands and feet were photographed. He was then taken, again with his agreement, to the Southport Hospital where a doctor examined him, paying particular attention to his hands and feet, apparently in order to see if some indication could be obtained as to how long the appellant had been in the canal. In a record of interview, which took place after 1 p.m. on the following day, the appellant told police he was immersed in the water for about 1½ hours.

After the examination at the Southport Hospital the appellant and the police officers returned to the Southport Police Station. The appellant denied any involvement in the bank robbery. A short interview, terminating at 3.29 p.m., was then conducted. This was in relation to an offence of unlawfully being in an enclosed yard, with which the appellant was charged at about 4.30 p.m. The enclosed yard in question was that of the building site previously referred to.

Having been charged with the offence of unlawfully being in an enclosed yard, the appellant was not released on watch-house bail, and was not taken before a Justice until the next day, Saturday, 5 January, when he was taken before a magistrate and pleaded guilty to the offence of being unlawfully in an enclosed yard. He was convicted and fined $150. The appellant was then taken back to the watch-house by a police officer apparently for the purpose of claiming his property. The police officer regarded the appellant as being obliged to accompany him in order to collect his property and sign a book although he had been dealt with by the court. As the appellant was leaving the watch-house detectives engaged in the investigation of the robbery arrived. There was little occasion to doubt that they had been alerted to the appellant's impending release. The appellant accompanied these police officers to the police station where the interview was recorded by audio and videotape.

The learned trial judge thought that, having regard to the appellant's age (19) and lack of experience with police, "he probably thought he was in effect in custody" at that time. In the interview the appellant frankly admitted his role in the robbery, having been warned he was not obliged to say anything.

At the trial the admission of the record of interview was challenged on three bases: first, that the confession was not voluntary; secondly, that it was not in all the circumstances fair to the accused to admit it into evidence; and thirdly, that the trial judge ought to have excluded it on public policy grounds because of the illegal detention of the accused in the period leading up to its being made.

The trial judge heard evidence from six police officers on a voire dire hearing to deal with the admissibility of the confessional statement. The appellant neither gave nor called evidence on the voire dire or for that matter before the jury.

The trial judge concluded that the videoed statement was voluntary and declined to exclude it in the exercise of a discretion to do so on either of the grounds of unfairness or offence against public policy. The appellant appeals against the trial judge's failure to exclude the confessional statements constituted by the videotaped interview.

No basis has been shown for disturbing the trial judge's conclusion that the statement was voluntary. Having reviewed the evidence on the voire dire, including the video, the trial judge concluded that the appellant had been properly warned and was not overborne or otherwise disadvantaged in the interview. These conclusions were accepted by counsel for the appellant as being open and do not involve any demonstrable error. That leaves for consideration the trial judge's refusal to exercise the discretion to exclude the record of interview on the grounds of unfairness or public policy.

The two discretions are independent but overlap: Foster (1993) 67 A.L.J.R. 550 at 554. However, the focus of the two discretions is different. The first, which is concerned with confessional evidence generally, focuses on the effect of police conduct on the accused. The second, which is concerned with unlawfully obtained evidence generally, focuses on "larger notions of public policy": ibid.

Her Honour concluded, correctly in our view, that there was evidence to support the charge of unlawfully being in an enclosed yard, an offence which the appellant admitted when interviewed and to which he pleaded guilty. Her Honour also concluded that the existence of the charge was convenient for the police officers investigating the robbery. Having arrested the appellant, the police officers were under an obligation to take him "forthwith" or "as soon as practicable" before a Justice "to be dealt with according to law": s.552 Criminal Code; s.69 Justices Act. It is an offence to wilfully delay taking a person before a Justice to be dealt with according to law: s.137 Criminal Code.

The trial judge found to the effect that by the time the appellant had been arrested and charged "there was probably no arrest court sitting in Southport to have him brought before on the Friday afternoon, 4 January, 1991." This finding seems to have been treated as determinative of the issue of the appellant's being brought before a Justice, in compliance with the obligations referred to above, on the afternoon and night of Friday, 4 January. No basis has been advanced for impeaching that finding or determination.

The evidence was unclear as to when the accused was brought before the magistrate on Saturday, 5 January. It appears that at one stage the accused was taken to court but was returned to the watch-house without having been dealt with and was then later taken back to court, his plea taken and he was sentenced.

This course of events seems, however, to be explicable in terms of court arrangement rather than of any contrivance by the police to delay the appellant's appearance and release. It may be thought that the circumstances were such as to arouse suspicion that the police had charged the appellant with the minor offence as a device to get a confession to the robbery, but the judge has accepted the prosecution case on this issue and we are unconvinced that her Honour was obliged to adopt the explanation of events put forward by the defence. The latter explanation would have cast a different light on events from the perspective of the discretionary issues.

By s. 7 of the Bail Act 1980, given that it was not practicable to bring the appellant before a court "forthwith", the watch- house keeper was to consider ("shall") the question whether or not bail should be granted. The watch-house keeper could ("may") have released the appellant from custody in accordance with the Act. That would have discharged the obligation to take the appellant before a Justice. See also s. 14.

As has been indicated, the appellant was not given watch-house bail, nor was any reason for refusing bail recorded as required by s. 7(3). However, s. 7(3) specifically provides that such a failure to record reasons does not render the custody unlawful.

A police officer swore that he told watch-house staff not to grant bail and that the appellant was not given a specific opportunity to request bail. The watch-house keeper was not called as a witness, apparently because of his unavailability. The trial judge said, correctly in our view:

"Normally one would expect watch-house bail to be given to someone in the accused's position, a 19-year- old first offender on an offence of this kind..."

However, her Honour went on:

"In the circumstances where the accused was found wearing only shorts, and in possession of $20, without identification, he was interviewed and charged outside normal court hours and especially as he was known to police to be a suspect in a serious armed robbery involving firearms, I cannot on the evidence before me say that the watch-house officer who refused to grant bail exercised his discretion unlawfully. I am not satisfied that the accused was unlawfully detained on 4 January, 1991."

Her Honour then dealt with the events of 5 January, to which we have referred - the absence of any evidence that any delay in bringing the appellant before the court was due to any contrivance by police and the agreement by the appellant upon his release to accompany police to the Southport Police Station - and concluded that the appellant was not unlawfully detained on 5 January either.

We agree that, on the facts which her Honour accepted, and which she was entitled to accept, the appellant was not unlawfully detained on 4 or 5 January. However, the discretion to exclude evidence on the ground of unfairness is not restricted to unlawfully obtained evidence: Foster at 554. If, by reason of the manner of the investigation, it was unfair to the appellant to admit evidence of the confession, whether because the reliability of the confession had been made suspect or for any other reason, that evidence should have been excluded: Duke (1989) 63 A.L.J.R. 139 at 141; but the issue appears to depend

principally upon whether the unfairness was of such a kind as to induce, or be likely to induce, unreliable evidence: Hart, Court of Appeal, 2 November 1993, p. 7.

Her Honour dealt with reliability in the following terms:

"There is no doubt that the fact that this accused was charged with an offence under the Vagrants, Gaming & Other Offences Act was convenient to police officers, but there is no evidence from the accused that he was overborne or that this detention had any effect on his mind. Indeed, my viewing of the tape suggests to me that that was not the case.
...

In the exercise of my discretion on the grounds of unfairness to the accused I am satisfied that evidence of the interview between police officers and the accused should be led."

There was no other basis upon which it could be said that the admission of the confession was unfair to the appellant. This was not a case, like Hallam v. Karger (1985) 18 A.Crim.R. 221, where a person suspected of committing a serious offence was arrested and charged with a minor offence, not for the bona fide purpose of bringing him to justice for that offence, but in order to enable an interrogation of the arrested person as to the more serious offence to take place while he was in custody, being held without bail for the same purpose. See at 228-9. See also McDermott (1948) 76 C.L.R. 501 at 513, where Dixon J pointed out that the abuse of the power to arrest by using the detention of the accused person as an occasion for securing from him evidence by admission was then treated in England as an impropriety justifying the exclusion of the evidence; and Williams (1986) 161 C.L.R. 278. The mere fact that having the appellant in custody was convenient to the police in their investigation of the armed robbery does not make the charge one made in bad faith or otherwise improper. Nor was there any impropriety in the circumstances of the case in not granting him watch-house bail. And, as we have already pointed out, there was no improper delay in bringing him before a Justice. As to the appellant's agreement to accompany the police to the police station upon his release, though he may have thought that he was then in custody, there was no evidence that anything said or done by the police officers contributed to that belief. The second basis of challenge therefore also fails.

Where, as in this case on the findings of her Honour which we would not disturb, there was neither illegality nor impropriety on the part of the police, there is no room for the exercise of a discretion to exclude the confession on the ground of public policy. The third basis for challenge must therefore also fail and the appeal must be dismissed.