R v Faumuina

[2004] QSC 264

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

[2004] QSC 264

FRYBERG J

Indictment No 97 of 2004
THE QUEEN
v.

ARTHUR FAALII FAUMUINA

BRISBANE

..DATE 17/08/2004

RULING

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

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HIS HONOUR: The trial of Arthur Faumuina was listed to	1
commence today. This is the second time the trial has been listed to commence. On the previous occasion it was adjourned at the request of the Crown in order to obtain further evidence from a medical practitioner who had treated the deceased. That request was supported by the defence and at that time the defence informed the Court that it was ready to proceed.	10
Yesterday the defence gave the Crown notice of its intention to apply to the Court for a ruling pursuant to section 590AA of the Criminal Code that part of the evidence of Senior	20
Constable Martin James Arnold should be excluded. An outline of the argument was provided to the Crown and the application was brought on this morning before the jury was empanelled.
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I should say at once that it is most unfortunate that an
application of this nature should be made so belatedly. The lateness of the application has resulted in the loss of most of the first morning of the trial, has required that the jury
panel be kept waiting for this time and has been unnecessary,	40
since the matter could have been dealt with and should have been dealt with much earlier.
In saying that, I am not intending to cast aspersions on
Mr Devereaux, counsel for the defence. Mr Devereaux frankly	50

told me that the point - particularly in the form in which it
was ultimately argued, which was not wholly included in the
outline of argument provided to the Crown yesterday - had only
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recently occurred to him; but the lateness is, I think,	1
indicative of a systemic failure by which counsel, often on both sides of the record, are given insufficient time to prepare for criminal trials in this Court. Why such time is unavailable - and I have seen it on many occasions, both on

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the prosecution side as well as on the defence side - I am not
in a position to state. No doubt there are multiple causes,
but one seems to be the lack of resources devoted to
preparation of criminal trials. One might have thought that

trials for homicide were among the most serious in the

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Criminal Code. The resources devoted to such trials at times seem to suggest that the offences are treated in a cavalier fashion. Nonetheless, the lateness of the application does not entitle me to refuse to deal with it.

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The evidence in question consists of a conversation between the police officer and the accused. It is short and to the point. To give it meaning, however, I must set out something

of the context.

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The deceased died as a result of hitting his head on a concrete path or kerb outside the Palm Beach Surf Club. He hit his head on the concrete because, on the Crown case, the accused punched him. Police officers arrived at the surf club to find the deceased lying on the ground with a group of

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people around him. One of the witnesses told Constable pointing to Jefferson Lane. Constable Arnold proceeded to the intersection of Eleventh Avenue and noticed a dark male person 17082004 D.1 T5/SBH (Fryberg J) 3 60

dressed in grey crouching and hiding behind some bushes. He	1
approached that person, who it transpired was the accused, and asked his name, address and telephone number. He formed the view that this person was a suspect for the offence which he then regarded as an assault. At that time, the deceased was

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conscious and Constable Arnold was aware that the deceased had
refused to make a complaint.

He had a conversation with the accused. He said, "What happened?" The accused said, "He was mouthing off."

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Constable Arnold said, "How did you hit him?" The accused said, "Punched him. Sorry, it's my fault." Constable Arnold said, "He doesn't want to make a complaint at this stage." The accused said, "Okay." Constable Arnold said, "But if he changes his mind, you may be contacted, okay?" The accused

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said, "Yeah." It is that evidence which the accused now seeks
to have excluded from the trial.

Constable Arnold did not tape-record that conversation. It was not practicable for him to do so. He had no

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tape-recorder. He did, however, make a note of the
conversation in his official police notebook shortly after the

conversation occurred.

The accused was not taken into custody and was duly released,

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if that is the right word, and went about his business. The
deceased refused medical attention until several days later
when he was persuaded to go to the hospital, and a few days
after that, he died. Presumably, he never made a complaint to
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the police.	1
Mr Devereaux, for the accused, submits that the evidence in inadmissible by reason of section 263(3) of the Police Powers

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and Responsibilities Act 2000. That section provides that if a relevant person - and there is no doubt, I interpose, that, in the circumstances of this case, the accused was a relevant person within the meaning of the Act - makes a confession or
admission to a police officer during questioning, the

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confession or admission is admissible in evidence against the
person in a proceeding only if it is recorded as required by
section 263(4), or section 264. The former of those
provisions has no application since there was no electronic

recording. The latter applies because section 264 prescribes

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the way a written record of a confession or admission is to be
made. Among other things, it requires that the note be shown
to the person interviewed and that he be given a copy. He
must also be given the opportunity during and after the

reading of the note to draw attention to any error in or

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omission from the record. None of that was done. It is the admission of evidence of the confession or admission unless the section is complied with and it was not complied
hardly surprising that it was not done in the circumstances.

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with. Prima facie, therefore, the evidence is inadmissible.

Mr Parker for the Crown sought to avoid that consequence by
proposing to tender not oral evidence of the conversation, but
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the police officer's note itself. He proposed to do that	1
pursuant to section 266 of the Act. That section says:

"(1) Despite sections 263 and 264, the Court may admit a or there is not enough evidence of compliance
record of questioning or a record of a confession or
admission ("the record") in evidence even though the

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(2) However, the Court may admit the record only if,
having regard to the nature of and the reasons for the
non-compliance, and any other relevant matters, the Court
is satisfied in the special circumstances of the case
admission of the evidence would be in the interests of

justice."

It is to be observed that section 266 does not permit evidence	20
of the fact of the admission or confession as such; that is to
say, it does not purport to reverse the effect of section
263(3) in so far as that provision prohibits the admission of
a confession or admission directly. What it does is provide
that the Court may admit a record of the confession in	30
evidence even though the division has not been complied with.
The conditions for the admission of the record are that in the
special circumstances of the case, admission of the evidence
would be in the interests of justice. If the section applies,	40
I would be inclined to the view that it would be in the
interests of justice to admit this conversation in evidence -
or, more accurately, the note of the conversation in evidence.
There is no challenge to the fact that it was a note made
shortly after the conversation. There is no suggestion that	50

the conversation did not happen. There is no suggestion that
what the accused said was untrue or inaccurate in any way.
There is no suggestion that the accused was overborne. There
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is no suggestion that the accused was unwell or in any way	1
disadvantaged by the questioning and there is no evidence from the accused to suggest that any factor affecting the interests of justice would warrant a favourable exercise of the
discretion to him. The only point made on his behalf is that

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he was not given a caution. That would not, I think, be
sufficient to outweigh all the other matters.

However, the issue which arises is whether or not section 266 can permit the tender of the police notes. Mr Parker

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submitted that section 266 confers a power to admit the record
of the questioning provided the requirements of the section
are fulfilled. He submitted that that is the only condition
which must be satisfied for the record to be admissible. He

submitted that the section is not simply designed to permit an

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exception to be made to the prohibitions set out in sections did not exist - that is, sections 263, 264 and 266 did not
263 and 264, but that it is wide enough to permit the
admission of evidence which would be otherwise inadmissible.

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exist - the notes made by the police officer would not be
admissible, at least not at the tender of the Crown.

The question therefore is whether, despite the fact that even apart from sections 263 and 264 these notes would be

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inadmissible, they may be made admissible if section 266 is
complied with. No authority has been cited which is directly
on the point. I have been referred to the decision of Justice
Mackenzie in The Queen v. Dien Cong Duong [2000] QSC 266 and
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to the decision of the Court of Appeal in The Queen v. Smith	1
[2003] QCA 76. The former was a case concerned with the previous police responsibilities code. A copy of that code has not been put before me and I am not satisfied that it is in terms the same as the present provisions of the Police

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Powers and Responsibilities Act. For that reason, I am not satisfied that Justice Mackenzie's decision has any application in the present circumstances.

As far as the Court of Appeal decision is concerned, it does

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not seem to address the issue. Reliance was placed by McPherson, but it does not seem to me that his Honour was addressing the issue presently before the Court in that passage. Indeed, it is clear that in that case, there was no

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attempt made to tender a record of questioning or a record of
a confession or admission.

Looking at the section in its context, it seems to me that it is designed to provide a limited exemption to the operation of

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sections 263 and 264 and no more. I do not read it as
entitling a party to tender evidence which is otherwise
inadmissible, even if the requirements of subsection (2) are
complied with. It may be thought unfortunate that the

Parliament has enacted legislation which excludes evidence

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which the Court might think it is in the interests of justice
to put before the jury. Excluding such evidence may bring
the law into disrepute. It means the jury must decide the
case on a false basis. Nonetheless, that, it seems to me, is
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the intent of sections 263, 264 and 266. Section 263(3) seems	1
clearly designed to exclude evidence of a confession or admission if it is not recorded. It does not matter whether it is in the interests of justice that the confession should be put before the jury. The interests of justice are to be

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subordinated to the correct following of procedure by the
police force.

The use of section 266 to evade that consequence is, in my view, not permissible if the evidence is not otherwise

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admissible. For that reason, I uphold the application and I
direct that the evidence which I have quoted in these reasons

be excluded from the prosecution case.

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