R v. H

[2008] QDC 116

DISTRICT COURT OF QUEENSLAND

CITATION:

The Queen v H [2008] QDC 116

PARTIES:

THE QUEEN

v

H

FILE NO/S:

DIVISION:

Criminal

PROCEEDING:

Application pursuant to s 590AA Criminal Code

ORIGINATING COURT:

DELIVERED ON:

1 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

10, 11, 12 and 13 December 2007, 28 March 2008 and 1 May 2008

JUDGE:

Samios DCJ

ORDER:

Conversation and record of interview inadmissible

CATCHWORDS:

Criminal law – pre-trial hearing – evidence – admissibility – record of interview – recorded conversation

COUNSEL:

Mr Cassidy of Counsel for DPP

Ms Cuthbert of Counsel for defendant until 13 December 2007 and Mr P. Smith of Counsel thereafter

SOLICITORS:

Director of Public Prosecutions (Qld) for Crown

Inala Lawyers until 13 December 2007 and Fisher Dore thereafter

1. The defendant is charged with committing a number of offences of a sexual nature against his daughter between 1 March 2002 and 16 October 2005.

1. On 17 October 2005 when the defendant was at the Yamanto police station he had a conversation with his sister.  His sister had been fitted by the police with a “wire” and the conversation was recorded.

1. The next day, 18 October 2005, the defendant participated in a record of interview with the police. 

1. In the conversation and in the record of interview the defendant made some admissions.

1. This is an application by the defendant for a ruling that the conversation and the record of interview are inadmissible on his trial for the charges. 

1. On the hearing of the application the prosecution called three witnesses.  These witnesses were the defendant’s sister and two police officers, Detectives Booth and Cattanach.  The defendant also gave evidence on the hearing.

1. There is some conflict between the witnesses’ evidence. That is, the defendant says there were breaks during the conversation not recorded, however for the most part the conversation and the record of interview are recorded.  Further, the defendant says, during a toilet break during the record of interview, he was offered an oral inducement by Detective Booth to the effect that she would get his children back to their mothers, if he acknowledged that it was possible something happened between the defendant and the complainant in the charges, and some sort of admission was made.  This was denied by Detective Booth.  This alleged inducement is not relied upon by the defendant in support of the application to rule the record of interview inadmissible. 

1. The defendant’s sister and Detectives Booth and Cattanach said the purpose behind the conversation being recorded was because they were concerned for the defendant’s mental state.  It was claimed by the police the defendant had said to the police he was suicidal. 

1. I have listened to the conversation and record of interview and listened and observed the witnesses give evidence and be cross-examined.

1. The prosecution bears the onus of satisfying me on the balance of probabilities the conversation and the record of interview were voluntary.

1. I accept the defendant’s sister and Detectives Booth and Cattanach were concerned about the defendant’s state of mind.  However, the defendant’s sister instead of talking to him, questioned the defendant and put many assertions to him as fact.  For example the defendant’s sister often said the police had more evidence or would obtain more evidence against the defendant.  She said the police would involve more people in the investigation.  Further she misled him during the conversation when he alluded to the possibility the conversation was being “bugged” she said that was not possible.  This was in the context of the defendant being concerned to have his children remain with their mothers rather than being taken away by the Department of Child Safety.  The defendant believed by saying something to the police he could avoid the children being taken away.

1. I consider the defendant’s sister created an atmosphere that encouraged the defendant to speak to her and the police.  I accept the defendant’s sister was demanding and overpowering.  I do not accept in this atmosphere the defendant was free to choose to speak or not.   

1. This occurred in the context where the defendant had refused to answer questions the previous evening.  Further, his sister was brought in as a support person and was an agent for the police to determine his state of mind.  Further, the defendant I accept was detained by the police.  To say he was free to leave but if he did so he would be arrested is the same as arrest.

1. I accept the defendant’s sister was, in her view, acting in the defendant’s best interests.  However, in fact she was not.  I do not accept the police can in these circumstances take advantage of the conversation.  To allow the prosecution to take advantage of this conversation would be unfair to the defendant.  In any event I am not satisfied it was voluntary in the circumstances. I rule the conversation inadmissible. 

1. As far as the record of interview is concerned, I put to one side the alleged oral inducement. 

1. A number of Police Powers and Responsibilities Act provisions are relied upon. Even accepting they have been breached, I am satisfied the breaches were not deliberate on the part of Detectives Booth and Cattanach.  I am satisfied Detectives Booth and Cattanach were concerned for the defendant’s state of mind.  However, the vehicle they used to determine his state of health, namely his sister, was through no fault of her own, an inappropriate vehicle for the task.  In any event I do not consider these breaches make it unfair to receive the conversation and record of interview into evidence.

1. However, because of the circumstances surrounding the conversation I am not satisfied the record of interview was voluntary.  On the contrary I am satisfied the defendant was, for good motives on the part of his sister, unfairly encouraged to engage in the record of interview.

1. I rule the record of interview inadmissible.