R v Garcia
[2010] QSC 494
•15 October 2010
SUPREME COURT OF QUEENSLAND
CITATION:
R v Garcia [2010] QSC 494
PARTIES:
THE QUEEN
(applicant)
v
VLADIMIR GARCIA(respondent)
FILE NO/S:
BS 296/10
DIVISION:
Trial
PROCEEDING:
Application pursuant to s 590AA Criminal Code Act 1899 (Qld)
ORIGINATING COURT:
Supreme Court, Brisbane
DELIVERED ON:
15 October 2010
DELIVERED AT:
Brisbane
HEARING DATES:
18, 20 August 2010
JUDGE:
Margaret Wilson J
ORDER:
That all confessional statements made by the applicant after the car journey from the Melbourne Custody Centre to Melbourne Airport on 30 May 2009 are inadmissible.
CATCHWORDS:
CRIMINAL LAW – EVIDENCE – confessions and admissions – where applicant agreed to speak with police in relation to the murder of his former employer and his former employer’s wife – where applicant was arrested and charged with two counts of murder – where applicant made confessions to the police about his involvement in the murders – where applicant made an application to exclude confessional evidence – where applicant argues that police officers made threat or promises on four occasions which were operating on his mind when he made relevant confessions – where the mandatory penalty for murder is life imprisonment – where the minimum non-parole periods for murder convictions are 15 years for one murder and 20 years for two – where police officer referred to imprisonment of "25 years or 15 years or less" – where another police officer referred to imprisonment terms of 18, 20 and 25 years – whether police officers made a threat or promise to applicant within the meaning of the Criminal Law Amendment Act 1894 (Qld), s 10 – whether the relevant confessions were made voluntarily
Corrective Services Act 2006 (Qld), s 181
Criminal Code Act 1899 (Qld), s 305
Criminal Law Amendment Act 1894 (Qld), s 10
Penalties and Sentences Act 1992 (Qld), s 13APolice Powers and Responsibilities Act 2000 (Qld)
Cleland v R (1982) 151 CLR 1; [1982] HCA 67, cited
Duke v The Queen (1989) 180 CLR 508, applied
R v Swaffield (1998) 192 CLR 159; [1998] HCA 1, appliedVan der Meer v R (1988) 82 ALR 10; [1998] HCA 56, cited
COUNSEL:
SR Lewis for the applicant defendant
MR Byrne SC for the respondent Crown
SOLICITORS:
Legal Aid Queensland for the applicant defendant
Director of Public Prosecutions for the respondent Crown.
MARGARET WILSON J: Vladimir Garcia and Cameron Andrew Stewart have been charged with two counts of murder and other offences. This is an application by Mr Garcia ("the applicant") to exclude confessional evidence.
The applicant relies on three grounds –
(a) that the confessional statements were induced by a threat or promise in terms of s 10 of the Criminal Law Amendment Act 1894 (Qld);
(b) that those statements were not made voluntarily; and
(c) that it would be unfair to admit them.
Section 10 of the Criminal Law Amendment Act 1894 (Qld) provides –
"10 Confessions
No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown."
A confession induced by a threat or promise made by some person in authority is inadmissible pursuant to s 10 of the Criminal Law Amendment Act 1894 (Qld) if the threat or promise was a factor operating on the will of the person making the confession; it need not have been the only factor.
The applicant contends that there were four occasions on which police officers improperly made a threat or promise within the meaning of s 10, and that that inducement was operative on his mind when he made relevant confessions:
(a) on 30 May 2009, in a police vehicle travelling between the Melbourne Custody Centre and Melbourne airport;
(b) on 30 May 2009, during a flight between Melbourne and Coolangatta;
(c) on 13 June 2009 – a conversation concerning s 13A of the Penalties and Sentences Act 1992 (Qld); and
(d) on 23 June 2009.
The respondent –
(a) concedes that the first, third and fourth conversations, which were electronically recorded, occurred;
(b) disputes that the second conversation occurred;
(c) concedes that the first, third and fourth conversations, and the second conversation (if it occurred) were capable of amounting to inducements; and
(d) contends that any promises which were made did not operate on the will of the applicant so as to induce him to confess.
The prosecutor submitted that the applicant’s evidence was unreliable, and that where there was a conflict between his evidence and that of police officer Bolin, Bolin’s evidence should be preferred.
He submitted that any promises that were made did not operate on the applicant’s will to induce him to confess. He submitted that the applicant had decided to give police a version of his choice before any promise was made. The primary reason he made admissions was his desire to have the prosecution finalised as soon as possible.
It was common ground that the respondent bears the onus of proof of voluntariness and that the applicant bears the onus of proof of unfairness. In each case the standard of proof is "on the balance of probabilities".
The homicides
The applicant and Stewart are charged jointly with the murders of Alexander Davie and his wife Suzanne Marie Davie on or about 3 May 2009 on the Gold Coast.
Mr and Mrs Davie operated a security business named SSS Security. On the evening of Sunday 3 May 2009 Mr Davie was performing a patrol of premises known as One Steel Recycling in Rudman Parade, West Burleigh. The following Tuesday, his body was located in a toilet in those premises. He had been stabbed repeatedly, predominantly in the neck and torso. There were blood spatter patterns in the toilet consistent with his having been fatally attacked there. His hands were tethered behind his back with two interlocked zip ties. The word "DOG" was written in his blood on the toilet door. He was wearing his security uniform and had a watch on his wrist. Partial DNA profiles consistent with Stewart’s were obtained from his watch and his utility belt.
Later that morning Mrs Davie’s body was found at their home in Wattle Glen Close at Robina. She had been stabbed twice in the chest and beaten about the head, face, torso and extremities.
Penalties
In Queensland a conviction for murder carries a mandatory sentence of life imprisonment.[1] A person convicted of one count of murder must serve a minimum of 15 years before becoming eligible for parole.[2] A person convicted of two counts of murder must serve a minimum of 20 years before becoming eligible for parole.[3]
[1]Criminal Code Act 1899 s 305(1).
[2]Corrective Services Act 2006 (Qld) s181(3).
[3]Criminal Code Act 1899 s 305(2) and the Corrective Services Act 2006 (Qld) s 181(2).
Previous relationship between the defendants and Mr & Mrs Davie
The two defendants were employed by SSS Security until their dismissal in 2006. Shortly after their dismissal, a quantity of firearms was stolen from a safe at the Davies’ residence. Mr Davie accused them of the theft. A little time later they were arrested for a break and enter offence at Bundall. They ultimately pleaded guilty after serving about six months in pre-sentence custody, and were not required to serve any further period of actual imprisonment. There is evidence that, prior to their arrest for that offence, they made threats to kill or harm Mr Davie, and that they were involved in an incident in which they confronted Mr Davie with a firearm, but did not discharge it.
Police interview Garcia
The applicant and his de facto partner lived in Ashwood, Melbourne. Stewart resided at the same address, in a separate bungalow.
On 14 May 2009 Victorian police spoke to the applicant. He told them that he was on the Gold Coast between 24 and 28 April 2009 visiting a friend.
The applicant travelled to Queensland voluntarily and was interviewed by Queensland police on 22 May 2009. At the start of the interview he was given the usual warnings about not having to answer questions as anything he said might be used in evidence against him, and informed of his right to have someone else present and his right to have a solicitor present or to seek legal advice. He maintained that he was in Queensland between 24 and 28 April 2009, and said he had then gone camping at Split Rock Dam near Tamworth in northern New South Wales with Stewart. He denied any involvement in the murders.
On 28 May 2009 the applicant drove Stewart to the Caulfield Police Station in Melbourne, where he was interviewed by Queensland police. Stewart gave a version consistent with that given by the applicant on 22 May 2009. Stewart was charged with two counts of murder.
The applicant waited for some time while Stewart was being interviewed, and then decided to leave. At that stage he was arrested, and charged with two counts of murder. While he was in the cells at Caulfield Police Station, the applicant had a telephone conversation with someone from a Victorian solicitor’s office. Then, after the usual cautions had been administered, he had a conversation with two Queensland police officers, Hickey and Stock, and a Victorian police officer, Birch. He gave an account of being asleep in a unit on the Gold Coast when Stewart and another man Anthony Ward committed the homicides. He had nothing to do with the killings, and only became aware of them sometime later. He agreed to speak further with police, but by the time an interview room was organised, he had spoken with a lawyer and declined to participate in any further interview at that stage.
That day police executed a search warrant on the property at Ashwood. They seized telephone records, a quantity of ammunition, and, in Stewart’s bedroom, zip ties interlocked like handcuffs, in the same manner as the zip ties used on Mr Davie.
On 29 May 2009 orders for the extradition of the applicant and Stewart to Queensland were made in the Melbourne Magistrates Court.
The next morning, Saturday 30 May 2009, the applicant was transported by a Victorian police car from the Melbourne Custody Centre to Melbourne Airport. The car was driven by Birch. A Queensland police officer, Bolin, travelled in the back seat with the applicant. When they arrived at the airport, they transferred into an Australian Federal Police vehicle to move into the terminal building. Once inside the terminal, they were met by another Queensland police officer Edwards (who had travelled to the airport in another vehicle). The AFP officer and Edwards stayed with the applicant while Bolin went to the toilet and purchased some food and something to read.
Bolin and Edwards accompanied the applicant on a Virgin flight to Coolangatta. Hickey returned directly to Brisbane on a different flight.
After arriving at Coolangatta airport, the applicant was again cautioned before being transferred to the Southport watch-house. En route there, the applicant directed police to the premises of One Steel, and told them about his involvement in the incident at that address.
On Monday 1 June 2009 the applicant appeared before the Southport Magistrates Court on two counts of murder. He was remanded in custody. After his court appearance, he participated in a recorded interview at the Southport watch-house. He told police that Anthony Ward had been involved in the incidents, and that Ward had been shot and killed by Stewart at Split Rock Dam on 6 May 2009. He also spoke of the three of them going to an area near the Hinze Dam and test firing the firearms they had the night before the killings took place.
The applicant was held on remand in the Arthur Gorrie Remand and Reception Centre.
On 13 June 2009 police took the applicant from Arthur Gorrie to the Gold Coast for the purposes of a re-enactment. He took police to various places including an area near Gate 3 of the Hinze Dam catchment near Advancetown, One Steel and Wattle Glen Close.
On or about 15 June 2009 police took the applicant from Arthur Gorrie to Tamworth. He participated in a re-enactment of events surrounding the shooting of Anthony Ward at Split Rock Dam and other events that occurred there.
On 23 and 24 June 2009 police took a typewritten statement of 46 pages from the applicant. Other evidence supports a number of features of his account – in particular times and places where people were, and events that occurred.
The conversation in the car on 30 May 2009
Before they left the Melbourne Custody Centre, Detective Sergeant Bolin activated a digital recorder. He provided the usual caution in accordance with the Police Powers and Responsibilities Act 2000 (Qld). While they were en route to Melbourne Airport, the following exchange occurred between the applicant and Bolin –
"GARCIA:What am I looking at? Honestly, double murder accessory, what am I looking at?
OFFICER BOLIN: It depends on a lot of factors mate. It depends ah, as I said on your cooperation and whether you cooperate or not as well.
GARCIA:Well I try to cooperate, the lawyer say shut up.
OFFICER BOLIN: Only you can make that decision at the end of the day, you’re the one who’s gonna spend time behind bars.
GARCIA:Yeah—
OFFICER BOLIN: As you say it, it depends on whether it’s gonna be twenty-five years or fifteen years or, or less.
GARCIA:Well, that’s what the lawyer said and like he can offer you a deal [INDISTINCT] it’s like [INDISTINCT]. I wanna be done with this.
OFFICER BOLIN: Absolutely.
GARCIA:I fell like ah, it’s not that I up-, like I don’t give a fuck about Cameron.
OFFICER BOLIN: Mmm?
GARCIA:I just don’t [INDISTINCT] around my family—
OFFICER BOLIN: Yeah.
GARCIA:You know—?
OFFICER BOLIN Well, well mate I don’t think he’s gonna be around your family or around anyone for quite some time.
OFFICER BIRCH: [INDISTINCT] prison.
OFFICER BOLIN: Yeah, I’m talking for the next twenty-five years for Cameron. So as I said mate it’s best in-, best interests to do the best for yourself and cooperate with us.
GARCIA:Yeah well [INDISTINCT] fucking lawyer [INDISTINCT].
OFFICER BIRCH: Oh, can I give you some advice? As an adult you make the decision because you’re the person who is the suspect yeah?
GARCIA:Yeah.
OFFICER BIRCH: Laywers are there to give advice, you, you b- you make the decision whether you wanna act on that device, that advice or do what you think is right to do, yeah?
GARCIA:Yeah.
OFFICER BOLIN: You’re just a client for them.
GARCIA:Yeah I know."
Given that the mandatory penalty for murder is life imprisonment, and given the minimum non-parole periods of 15 years for one murder and 20 years for two, Bolin’s reference to "25 years or 15 years or less" was wrong.
In examination in chief the applicant said he remembered this conversation vaguely. He answered questions by his counsel as follows–
"When you - what - Mr Bolin went on to say - you were talking about Stewart being away from your family - then he said, 'Well, I'm talking for the next 25 years for Cameron, so as I said, mate, it's best - in the best interest to do the best for yourself and cooperate with us.' What did you take that conversation to mean, Mr Garcia?‑‑ Firstly, I was worried about my family‑‑‑‑‑
Yes?‑‑ ‑‑‑‑‑which [indistinct] and that's when I was told that Cameron wouldn't be getting out for quite a while and in one way I was reassured if I cooperate everything would be good.
When you say everything will be good, what do you mean?‑‑ Oh, well, I thought the sentence would be less.
And what made you think that, do you remember?‑‑ Well, saw the difference between 25 and 10 years."
In re-examination he said that was the first time he considered how many years he would have to spend in prison. He thought Bolin was proposing that if he co-operated, he would receive a lesser sentence. The matter of how long he would have to spend in prison started playing on his mind.[4] He answered questions by his counsel as follows –
[4]Transcript 2-30 – 2-31.
"So the prospect of getting a lesser sentence, how did that come into your mind?‑‑ What do you mean?
What got you thinking about you might be able to get a lesser sentence?‑‑ I see my daughter.
No, what got you thinking about‑‑‑‑‑?‑‑ I seen my daughter while we were at airport and I already had a conversation with Mick Bolin about it and I remember thinking when is the next time I'm going to see her.
Okay. But what got you thinking about that you could get a lesser sentence, about how you could get a lesser sentence?‑‑ Mick Bolin told me.
Did you say then you saw your daughter‑‑‑‑‑?‑‑ Yes.
‑‑‑‑at Melbourne Airport‑‑‑‑‑?‑‑ Yes.
‑‑‑‑‑and so that assumed you started thinking about when you'd see her?‑‑ Yes.
So then it assumed some importance to you?‑‑ Yes."
That was the first time he had ever mentioned seeing his daughter at the airport. Bolin was recalled: he was quite definite that the applicant had never previously mentioned seeing his daughter at the airport, and that nothing had occurred to suggest that the daughter may have been at the airport. He conceded that in the car on the way to the airport Birch had had talked to the applicant about his daughter and what school she went to.
I reject the applicant’s evidence about seeing his daughter at the airport. But I accept that, after the conversation with Bolin in the car, the matter of how long he would have to spend in prison started to play on his mind.
I find that what Bolin said in the car about a reduced sentence was a threat or promise within the meaning of s 10 of Criminal Law Amendment Act 1894 (Qld). I am not satisfied on the balance of probabilities that that threat or promise was not operating on the applicant’s mind as an inducement to make each of the confessional statements he subsequently made.
The conversation on the plane on 30 May 2009
In his evidence in chief on the application, the applicant gave the following account of the conversation (in response to questions by his counsel Mr Lewis)–
"Okay. Then you arrived at the airport and you got on the plane, was there any conversation between that time and arriving at Coolangatta about the case?‑‑ Yes.
What was that conversation and when did it take - when and where did it take place, probably where as opposed to when?‑‑ It was on the plane.
On the plane, right. Who was the conversation with?‑‑ Me and Mr Bolin.
Okay. What was that conversation?‑‑ Well, I asked him to be honest with me and what he actually had against us as evidence. He proceeded to say that he had Cameron's DNA and that they found where Cameron stayed zip ties made like a handcuffs and he said we should think like who was going to be next.
HER HONOUR: He said what?‑‑ You should think like who was going to be next.
You should see who was going to be next?‑‑ No, you should think.
MR LEWIS: Think, your Honour.
MR BYRNE: Think, your Honour.
HER HONOUR: You should think who was going to be next?‑‑ Yes.
MR LEWIS: What did you take him to mean by that?‑‑ Well, Cameron was living with me so it was either me or my family.
All right. So you took that as him saying there was a threat to you?‑‑ Correct.
So you had that conversation, he said, you think about who would be next. What else was said?‑‑ Then he just started asking me about some other murders. Was quiet for a while. He was reading a book.
Who - he was reading a book?‑‑ Yep. Then he asked me about a murder in New South Wales and he said that his bosses were trying to solve these crimes and he asked me if I wanted to cooperate about the case.
Do you remember what he actually said?‑‑ If I cooperated the DPP will give me a lesser sentence.
Right?‑‑ I told him, "Look, you have to wait till Monday because Court is on Monday so it all depends on what my lawyer will say."
His counsel questioned him further as follows–
"And was that then how it was left?‑‑ No. I got thinking and thought it was best to cooperate straightaway so when we landed told Mr Bolin that I can take him to [indistinct] and I'll cooperate.
Right. So when you - you said you got thinking and you decided it would be best to cooperate why did you decide it would be best to cooperate?‑‑ Well, (a) Cameron wasn't coming out of gaol so my family was safe. Mr Bolin said, 'He won't be getting out for a while and that the DPP will go easy on me'. So - and he said to me that I was still young so I'd get out early so may as well.
And the DPP going easy on you, what did you take that to mean?‑‑ I thought I was going to get bail‑‑‑‑‑
Nobody - to make this clear though, you're not suggesting that anybody actually said you would get bail, are you?‑‑ No.
But did you take it to mean lenient treatment from the prosecution?‑‑ Correct.
Right. Were you aware at that stage of what the penalty for murder in Queensland was?‑‑ Nope."
As the prosecutor submitted, Bolin’s alleged input into that conversation can be distilled into four components–
(i) In answer to a question from the applicant, Bolin said that police had located Stewart’s DNA and the zip ties;
(ii) Bolin suggested that he should think who was going to be next;
(iii) Bolin spoke about a murder in New South Wales and asked if the applicant wanted to co-operate "about the case"; and
(iv) Bolin said that if he co-operated, the DPP would give him a lesser sentence, or that it would "go easy" on him.
The first of these was not a promise or a threat, but merely an answer to a direct question.
The applicant’s counsel did not suggest that the second was in the nature of a threat – Stewart was already in custody; rather, in the context of police at least suspecting that Anthony Ward was dead, Bolin was suggesting that he might think that, had they not been arrested, he would have been the next person to be killed by Stewart.[5]
[5]Transcript 2-55.
As for the third, in cross-examination the applicant said Bolin asked him about one murder in New South Wales, one at Coolangatta and one at Nerang.[6] Later he denied a suggestion that it was he who raised the murders at Nerang and Coolangatta, and that he did so on a later occasion, namely at Brisbane airport waiting to fly to Tamworth for the re-enactment at Split Rock Dam.[7] At any rate this component of the alleged conversation on the plane from Melbourne to Coolangatta was not capable of amounting to a threat or inducement.
[6]Transcript 2-26.
[7]Transcript 2-29 – 2-30.
As the prosecutor conceded, the fourth component was capable of being a promise.
I do not think it is of any moment that the applicant did not know what "DPP" stood for, and its precise role. It is enough that he understood the DPP to be someone who represented the police.[8] Nor do I think it matters that at one point he referred to the prospect of the DPP’s giving him a lesser sentence, and at another to the prospect of the DPP’s going easy on him. I accept that he used the expressions interchangeably.[9]
[8]Transcript 1–89, 2-32.
[9]Transcript 2-16, 2-31 – 2-32.
Bolin denied that the conversation occurred, and Edwards said he did not hear it. Both officers conceded that the applicant was told police had found Stewart’s DNA, and that he was told zip ties configured like handcuffs were found where Stewart lived, but neither of them could recall when he was told these things.
The inherent unlikelihood that Bolin would have had such a conversation on a commercial flight must be balanced against the fact that they were sitting in the very back row of the aircraft, and there was a high degree of aircraft noise.[10]
[10]Transcript 1-54.
I am not satisfied on the balance of probabilities that the alleged conversation on the plane took place.
Southport Watch-house
Before the applicant participated in the recorded interview at the Southport watch-house, Stewart’s solicitor spoke to him and advised him not to co-operate. During the interview police told him there was a solicitor wanting to speak with him. Assuming it was Stewart’s solicitor, the applicant declined to speak with him, and told police not to tell him that he was speaking with them. He told the Court he did not want to be treated as a dog in jail on account of his co-operating with police against a co-offender. He was asked –
Why did you start cooperating?‑‑ Because when Mr Bolin come down to see me after Court he said, 'Are you ready or what?' I said, 'Yes.' And that's it.
And why did you start cooperating?‑‑ In my mind I was going to get a better deal.
You'd get a better deal?‑‑ Correct.
And what you made you think you were going to get a better deal?‑‑ Mr Bolin.
Yes. What about Mr Bolin?‑‑ The way he promised things, yeah.
The applicant’s arrival at Arthur Gorrie and contact with his de facto
The applicant did not know the penalty for double murder in Queensland until he arrived at Arthur Gorrie. Fellow inmates told him that the penalty for a murder was life imprisonment, and that usually parole was granted after 15 to 18 years. In cross-examination he said he was told–[11]
[11]Transcript 1-86.
"It all depends if you co-operate with police or not. ...
I was told if I go Crown witness I can get out on bail and I can get less time or if I just take it to trial and find guilty I can sit here for 25 years."
He reasoned that if he would have to serve 25 years for one murder, he would have to serve 50 years for two murders:[12]
"I honestly thought probably 10 – 15 years and when I found out 25 years for one and I can be here for 50 what do you think I would have done? I took their deal."
[12]Transcript 1-86.
There is evidence that the applicant quarrelled with his de facto on 28 May 2009. He did not know whether she would stay with him. After he arrived at Arthur Gorrie, he received a letter from her, and he then telephoned her. It was not until that telephone conversation, which occurred before the "drive around" on 13 June 2009, that he realised she would stay with him. And it was then that the idea of getting a lesser sentence became "very important" to him.[13] I accept that receiving a lesser sentence was important to him before his conversation with her, and that it became more so as a result of that conversation.[14]
[13]Transcript 1- 87.
[14]Transcript 2-11 – 2-15.
I am satisfied on the balance of probabilities that what the fellow inmates told the applicant about the sentence he was facing and his learning that his de facto would stay with him confirmed the decision he had already made to co-operate with the police.
The re-enactments
A few days before 13 June 2009, the applicant received a telephone call at Arthur Gorrie from Intel, checking that he was willing to speak with Bolin. He responded –
"Yeah, I got not a problem. He knows that."
Then on 13 June 2009 he participated in the re-enactment referred to as the "drive around." Two days later he was taken to Tamworth, and then to Split Rock Dam, where he participated in another re-enactment.
As I am about to relate, on 13 June 2009, he agreed to give a statement against Stewart after Bolin spoke to him about s 13A of the Penalties and Sentences Act 1992 (Qld).
He told the Court that he had to co-operate with police and be honest with them "to get the deal" – a lesser sentence. In answer to leading questions from his counsel he told the Court that if he had not had the conversation with Bolin in the car (on 30 May 2009 en route to Melbourne airport), and then that on the plane, he would not have co-operated. His counsel then asked about the effect of the conversation about s 13A –
"And I should finally say, and also then that conversation about section 13A? – What about it?
Would you have cooperated?"
The applicant’s response is not recorded in the transcript, but I recall that he signified that he would not have co-operated.
The conversation on 13 June 2009
During the course of the car trip, the following conversation between the applicant and Bolin took place –
"GARCIA: Why does it take that long for court? What’s—
SGT BOLIN: Oh well basically it’s obviously very important investigation ah, it takes about quite a bit of time initially to put the brief of evidence together. And also just generally anyway it takes a while for court because there’s so many cases that ah, already have dates—
GARCIA: Oh.
SGT BOLIN: It just goes on the end of the queue, you know?
GARCIA: Yeah, so after the second of November we can be waiting for another six, seven months?
SGT BOLIN: Well, it depends on the, it depends on the situation. It depends on what you wanna do, in relation to whether you want it to go to trial or not.
GARCIA: Oh yeah I, as I said ah, to the lawyer I said, mate if I stick my head [INDISTINCT] I don’t wanna adjourn nothing.
SGT BOLIN: Yeah.
GARCIA: I wanna have this over and done with. See, I don’t know what ah, Cameron’s doing, I don’t give a fuck.
SGT BOLIN: Yeah?
GARCIA: I wanna get this over and done with.
SGT BOLIN: Well talk about it um, in detail later, but ah, you got the option of ah, coming in like on another day and providing a, a detailed statement. And um, in regards to the, the Penalties and ah, Sentences Act as I said to you previously, if you provide a, what they call a 13-A Evidence Statement basically against Cameron. Ah, there’s a ah, a big possibility that your sentence will be reduced.
GARCIA: I already said to youse—
SGT BOLIN: Yeah I know but like ah, I know that but basically it’s gotta be like a typed, written statement it takes, it’s gotta be detailed. It’s gonna take like some time so it’s up to you whether you want to or not but ah, at the end of the day like you’d be talking to, to Brisbane offices and sit down. It might take a whole day, it might take longer—
GARCIA: If you helps you—
SGT BOLIN: And that’s, so that’s—
GARCIA: Yeah.
SGT BOLIN: You know that’s, that’s classed as I said as ah, like a 13-A evidence statement, yep. Against Cameron. And um—
GARCIA: That’s what I already done though.
SGT BOLIN: Nah, that was just a record of interview.
GARCIA: Oh okay.
SGT BOLIN: But if you’re willing to do that we’ll um—
GARCIA: Yeah, sounds good.
SGT BOLIN: [INDISTINCT] some day, next Monday or Tuesday or something like that.
GARCIA: Yeah, Monday, Tuesday [INDISTINCT]—
SGT BOLIN: Nah, I mean, we’re only doing what, basically there’s rules and regulations we have to abide by.
GARCIA: Yeah.
SGT BOLIN: And it’s not something that—
GARCIA: Yeah.
SGT BOLIN: We wanna do, it’s something that we have to do.
GARCIA: Yeah.
SGT BOLIN: For evidence and it gets you out for the day anyway.
GARCIA: Yeah it’s not that mate like it’s a lot--
SGT BOLIN: I know, like you’re repeating yourself and repeating yourself.
GARCIA: Oh, yeah but no—
SGT BOLIN: I understand that.
GARCIA: It’s something else, it’s different but just.
SGT BOLIN: The way that works, that basically means you get your sort of court over and done with initially.
GARCIA: Yeah.
SGT BOLIN: And obviously his is, he will be heard at a, at a later time. And your statement will be handed up as evidence and that’s the way you sentence may be reduced as a result of that. Do you understand?
GARCIA: Yeah. Sort of like I, I’m still trying to like still don’t know about Supreme Court and the rest of this shit.
SGT BOLIN: Yeah.
GARCIA: And the rest of this shit yeah, but as long as it helps you c-, get this over and done with quicker, yeah?
SGT BOLIN: Well, that’s the way ah, and in that case, that’s how it does help you because it does your sit-, situation over and done with.
GARCIA: Yeah, so I can start [INDISTINCT]—
SGT BOLIN: But by, doing that basically um, you have to ah, formally admit that everything that you stated is, is true and correct."
I am satisfied on the balance of probabilities that when Bolin said –
"Well talk about it um, in detail later, but ah, you got the option of ah, coming in like on another day and providing a, a detailed statement. And um, in regards to the, the Penalties and ah, Sentences Act as I said to you previously, if you provide a, what they call a 13-A Evidence Statement basically against Cameron. Ah, there’s a ah, a big possibility that your sentence will be reduced"
he was referring to the conversation in the car on the way to Melbourne Airport, rather than to something he had said momentarily before. Bolin did not explain to the applicant that to take advantage of s 13A, he would have to plead guilty to two counts of murder, which carried a mandatory minimum period of imprisonment of 20 years. I reject his explanation in cross-examination that what he was really referring to was the DPP’s discretion to ask the Court to set the non-parole period at more than the minimum 20 years.[15]
[15]Transcript 1-36 – 1-40.
What Bolin said was a further threat or promise within the meaning of s 10 of the Criminal Law Amendment Act 1894 (Qld). While the applicant had decided to co-operate before this conversation, and had begun to do so, I am satisfied that this conversation was a further inducement to co-operate. I am not satisfied on the balance of probabilities that this further threat or promise was not operating on the applicant’s mind as an inducement to make the confessional statements he made after this conversation.
The conversation on 23 June 2009
The following passage appears in the record of interview on 23 June 2009 –
"SGT HICKEY: You know um, whether it’s a very short committal, or a very long committal. Some go for months, some go for hours, you know? Just [INDISTINCT] so um, but everyone’s got to have a committal. From there, the magistrate says, yes there is sufficient evidence to place you on trial ah, in front of the Supreme Court jury on the charges that you were charged with.
GARCIA:Yep.
SGT HICKEY: And I now call on you to enter a plea. How do you plea? Guilty or not guilty to these charges? That’s up to you. Your legal, your legal counsel’s there. He might be telling you to do one thing mate, I don’t know.
GARCIA: No, he can get fucked, [INDISTINCT] money. Why waste anybody else time and everything else.
SGT HICKEY: Yep, how long do you reckon you’re going to get?
GARCIA: But still, this has to be over and done with already, so I know what I’m doing.
SGT HICKEY: Yeah I know, but how long do you reckon you’re going to get?
GARCIA: Life.
SGT HICKEY: What’s life.
GARCIA: Don’t know.
SGT HICKEY: What do you reckon? Twenty?
GARCIA: I don’t know.
SGT HICKEY: Eighteen? Twenty-five?
GARCIA: I don’t know.
SGT HICKEY: Yeah, well if you do that, if you save the cost of a trial, if you say like, cooperate basically from the time the boys come and see you in the cell um, if you say you’re prepared to give evidence against Cameron ah, which is basically what this statement is about, they will get you a discount.
GARCIA: It’s not about the discount.
SGT HICKEY: No, no, no I’m not, but hey, you’re entitled to it. You’re entitled to it. If you do those things. But that’s still months down the track.
GARCIA: Yeah.
SGT HICKEY: Boys have got to get the statement out of you, we’ll talk again in a—
GARCIA: Yeah."
What Hickey said was a further threat or promise within the meaning of s 10 of the Criminal Law Amendment Act 1894 (Qld). The prosecutor fastened on the applicant’s response, "It’s not about discount," as an indication that the threat or promise was not operative on his mind when he gave his statement that day and the next. But in cross-examination this occurred–
MR BYRNE: That was you that said 'It's not about discount,' wasn't it, Mr Garcia?‑‑ Correct.
This was on the 23rd of June of 2009, wasn't it?‑‑ Correct.
This was after you have sworn today that spending a minimum period of time getting a discount was important to you?‑‑ Correct.
Why then did you tell police it's not about the discount?‑‑ They only think it's only about discount but it's not, it's about Cameron, it's about me, about my family, about everything. It's not just discount.
'It's not about discount.' That's what you said, wasn't it?‑‑ Yes.
You didn't say, 'It's not about the discount, it's about Cameron, it's about all these other things as well as the discount, ' did you?‑‑ No.
Straight out, 'It's not about the discount.' That's your answer?‑‑ Yes.
You didn't qualify it later, did you?‑‑ No
The applicant’s explanation, albeit proffered at a comparatively late time, is a plausible one in all the circumstances. I am not satisfied on the balance of probabilities that the threat or promise made by Hickey was not operating on the applicant’s mind as an inducement to give the further confessional evidence he provided on 23 and 24 June 2009.
Conclusions on s 10
I am not satisfied on the balance of probabilities that the alleged conversation on the plane occurred.
I am satisfied that in each of the other three conversations (on 30 May 2009 in the car en route to Melbourne Airport, on 13 June 2009, and on 23 June 2009) a police officer made a threat or promise to the applicant within the meaning of s 10.
The respondent has not satisfied its onus of persuading me on the balance of probabilities that each of those threats or promises was not operative on the applicant’s mind when he subsequently made confessional statements.
Accordingly, I rule that confessional statements made by the applicant after the car journey to Melbourne Airport are inadmissible.
Voluntariness
A confession is inadmissible unless the Crown establishes, on the balance of probabilities, that it was made in the exercise of a free choice to speak or remain silent: Cleland v R[16] and Van der Meer v R.[17] In R v Swaffield,[18] the High Court discussed the common law rule excluding confessions that are not voluntary. Brennan CJ observed[19] that a threat or promise by a person in authority will deprive a confession of a voluntary character unless the inducement is shown to have been removed. The Crown bears the onus of proving that the statement was voluntary.
[16](1982) 151 CLR 1, 5; [1982] HCA 67.
[17](1988) 82 ALR 10; 16, 26; [1998] HCA 56.
[18](1998) 192 CLR 159; [1998] HCA 1.
[19]At 167.
For the reasons I have already given in relation to s 10 of the Criminal Law Amendment Act 1894 (Qld), I am not satisfied that the confessional statements made after the car journey to Melbourne Airport were made voluntarily.
The Crown’s failure to satisfy the common law test of voluntariness is thus a further basis for finding those confessional statements to be inadmissible.
Unfairness
An accused person has a fundamental right to a fair trial. If that right would be jeopardised by the use of a confessional statement, that statement is inadmissible: Van der Meer[20] and Swaffield.[21]
[20]At 26 per Wilson, Dawson and Toohey JJ
[21]At 189 per Toohey, Gaudron and Gummow JJ.
In Duke v The Queen,[22] Brennan CJ said –
"R v Lee[23] attributes a broader scope to that discretion. The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded. Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification – to name but some improprieties – may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case."
[22](1989) 180 CLR 508 at 513.
[23](1950) 82 CLR 133.
Given my conclusions on s 10 and the common law exclusionary rule relating to voluntariness, it is not necessary for me to consider the application of this principle to the present case.
Ruling
I rule that all confessional statements made by the applicant after the car journey from the Melbourne Custody Centre to Melbourne Airport on 30 May 2009 are inadmissible.
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