R v Hart
[1993] QCA 441
•2/11/1993
IN THE COURT OF APPEAL [1993] QCA 441
SUPREME COURT OF QUEENSLAND
C.A. No. 270 of 1993.
Brisbane
[R v. Hart]
BETWEEN
T H E Q U E E N
- and -
ANTHONY JOHN HART
Appellant
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Pincus J.A. Davies J.A. Thomas J.
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Judgment delivered 2/11/1993
Judgment of the Court
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APPEAL AGAINST CONVICTION DISMISSED
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CATCHWORDS: | CRIMINAL LAW - EVIDENCE - Armed robbery in company - appellant taken to Beenleigh watch-house on a pretext - conversation recorded between appellant and accomplice placed in the cell - certain admissions thereby obtained - whether unfair to appellant to use admissions so obtained - whether court in its discretion should not have admitted the conversation into evidence. | |
| R v. Foster (1993) 67 A.L.J.R. 550 | ||
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| Counsel: | Ms K. Wenck for the Appellant Mr P Ridgway for the Crown | |
| Solicitors: | Legal Aid Office for the Appellant Director of Prosecutions for the Crown | |
| Hearing Date: | 14 October 1993 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 270 OF 1993.
Brisbane
| Before | Pincus J.A. Davies J.A. Thomas J. |
[R v. Hart]
BETWEEN
T H E Q U E E N
- and -
ANTHONY JOHN HART
Appellant
JUDGMENT OF THE COURT
Judgment delivered 02/11/93
This is an appeal against conviction. The appellant was convicted of attempted robbery in company, which offence was alleged to have occurred at Eight Mile Plains in June 1991. It was not contested that there was a robbery at the Glen Hotel on 23 June 1991; the question was whether the appellant was a party to it. The grounds of appeal were, first, that the trial judge should not have admitted into evidence a conversation between the appellant and one Blatch, and secondly, that the conviction is unsafe and unsatisfactory.
At about 7.20 p.m. on Sunday, 23 June 1991, two men confronted the duty manager, R.L. Nipperess, of the Glen Hotel at Eight Mile Plains. As Nipperess walked through the hotel the two men, with their faces concealed and bearing guns, held him up. By threatening Nipperess with their weapons, the two induced him to open a safe and then sought to insist that he open a "chute" in it; on Nipperess' saying that he was unable to do so, one of the men shot him in the foot. He was then tied up, as was another employee; the robbers took Nipperess' wallet and left.
There was evidence, adduced in cross-examination on behalf of the appellant at the trial, that Blatch was one of the robbers. The question was whether it was proved that the appellant was another.
At the trial, counsel for the appellant, then accused, raised a number of objections to the admission of a tape recording a conversation between Blatch and the appellant on 13 August 1992 - Exhibit 1. That which was principally pressed in this Court was that the judge should have exercised his discretion to exclude the tape on the ground that the means whereby it was obtained were unfair.
Those means were not proved with precision, but were described by the trial judge as follows:
"The accused through his counsel, Mr Farr, has objected to the reception of evidence of three conversations with his client which took place in the course of the investigation which has led to these proceedings. It is alleged that in the course of those conversations confessions were made by the accused.
The first conversation objected to was one with a person called Blatch in a cell at the Beenleigh watch- house on 13 August 1992. Blatch had been placed in the cell with the accused by the investigating police officers who then listened to and tape recorded the conversation. The accused, who was in custody in relation to other matters, had been brought to the watch-house ostensibly pursuant to section 70 of the Corrective Services Act 1988 but the chief reason appears to have been to enable the investigating police officers to obtain evidence of the sort now objected to. Blatch was a party to the plan and he participated no doubt hoping for some benefit to himself. Blatch raised a number of matters in the course of his conversation with the accused including the events which have led to the presentation of this indictment."
The judge also held that:
"...Blatch was, not as he appeared to the accused, a fellow prisoner, at the time when their conversation took place, and although Blatch did not misrepresent the accused's alleged part in these events, there were some statements made by Blatch in the course of his conversation with the accused which were untrue."
It should be added that there was evidence that Blatch had already been interviewed before the arrangements were made for him to talk to the appellant; Blatch had told the police who his accomplices were. Blatch had been used by the police in a similar way in the past and it had been found that he had on some occasions proved ineffective - "he just couldn't get them to talk about anything". Therefore, he was "briefed" by the police to "bring the subject up and keep gnawing away to see what would happen".
Exhibit 1 is a tape of part only of a conversation. Other parts of it were deleted on the ground that they included discussion of alleged offences other than that charged, and it was therefore thought that they might be prejudicial to the appellant. It was suggested before this Court, although the matter was not pressed, that being merely an extract of a longer conversation, the content of Exhibit 1 might be misleading. In our opinion there is nothing in this. No respect was suggested in which it could mislead, and the extract is, by itself, comprehensible. Moreover, the removal of the other material was effected at the behest of the defence.
Ms Wenck for the appellant also suggested that the content of Exhibit 1 could not reasonably be construed as incriminating; at least in combination with a subsequent talk the appellant had with a Const. Watts, it was in our opinion plainly capable of implicating the appellant.
It is desirable to set out the full text of the recorded conversation between Blatch and the appellant; Underwood Road, mentioned in the conversation, runs close by the hotel at which the robbery was committed.
"BLATCH, "I'm gonna be charged with the Glen
Hotel......U.I. Right, but I'm gonna be charged, they
don't know about youse. Right, they don't. Remember weused your car. "
HART, "What's the evidence."
BLATCH, "I don't know mate. Unless it's Warwick fuckin sayin I've told him."
HART, "It's all hearsay."
BLATCH, "Yeah, I know but they can still charge me with hearsay right. He's told them, they know. They told me all this."
HART, "Yeah."BLATCH, "I didn't tell them, they told me. This is what, there, sitten there telling me that. Tony HART drove the, drove the car away from the robbery and there fuckin, it's a little silver grey fuckin Fiat that he used to own. Fuckin Ra, Ra, Ra, Ra, Ra. You and Dale BOSWELL went in fuckin Ra, Ra. Did the Manager Ra, Ra. You shot the Manager in the foot, Fuckin Ra, Ra, Ra, Ra. Fuckin all that."
HART, "......U.I......
BLATCH, "Now did we go up Underwood Road or did we go
up through the back. We went up through the."HART, "Yeah."
BLATCH, "Back. Ah. They're saying that we went up to Underwood Road. Right, so they ... mighta fucked them there. Because member we went up through the back road."
HART, "Yeah, Oh, we, we did come off Underwood Road,
Mate, cause... that's.BLATCH, "Yeah, but after we'd gone up the back road eh."
HART, "Yeah, went up the back way onto Underwood and then on that....U.I....
BLATCH, "Yeah, that, that leads through straight through to fuckin old Beenleigh Road."
HART, "Yeah...U.I..." "
This Court heard the tape played. There was nothing in the manner of speech of the appellant to detract from any incriminating impression which might be gained from merely reading the transcript.
Watts gave evidence that on 10 September 1992 he played the tape of Exhibit 1 to the appellant who, on being asked if the tape was true and correct, said that it was -
"...except where the part was in relation to Brett Blatch was saying - a paragraph in the transcript that we clarified.
Yes. What did he actually say in clarifying it?-- My interpretation of that part was that Blatch was saying that Mr Hart and another person went into the hotel, whereas Mr Hart told me that Mr Blatch and another person went into the hotel.
Did he say what he was doing?-- No, he did not."
It will be noted that the form of Watts' evidence was rather unsatisfactory in that the witness did not, as invited, try to tell the Court what the appellant said, but merely stated his own interpretation of it.
But there was no objection to that evidence, as to content or form; nor was it challenged in cross-examination. Watts' evidence, considered with the content of Exhibit 1, provided a firm foundation for an inference that the appellant was a party to the crime. The part of Exhibit 1 which the appellant "clarified" was that in which Blatch, explaining what the police had told him, said "You and Dale Boswell went in...did the manager...you shot the manager in the foot...". The appellant's correction related merely to the identity of the persons who went into the hotel; he did not deny that he drove the car away from the robbery, nor, more generally, did he deny that he was involved in the robbery.
There was certainly a degree of deception in the methods used by the police and as Ms Wenck argued, objection might reasonably be taken to their technique: arranging for a person to speak to the appellant in an endeavour to obtain admissions from him, without any warning of the kind which would or should be given by interviewing police officers. Nevertheless, it was contended by Mr Ridgway on behalf of the Crown that the trial judge's exercise of discretion should not be upset. Issues of this kind have arisen in a considerable number of reported cases, but it appears desirable to concentrate, in the first instance, on decisions of the High Court.
There are two discretions to be exercised. The first is the discretion to exclude evidence on the ground that its reception would be unfair to the accused, and the second, "a particular instance of the discretion which exists in relation to unlawfully obtained evidence generally", to exclude evidence on public policy grounds: Foster (1993) 67 A.L.J.R. 550 at 554, see also Pollard (1992) 176 C.L.R. 177 at 196. The accused person bears the onus of establishing at the trial facts justifying the exercise of a discretion in favour of exclusion:
Van der Meer (1988) 62 A.L.J.R. 656 at 660. If he fails at that level, then on appeal there must be shown to be an error in the exercise of the discretion, for example, a failure to take account of relevant considerations, or that the reception of the evidence was so unreasonable that it could not amount to an exercise of the discretion in accordance with principle: Ibid.
As to unfairness, "the question is whether it would be unfair to the accused to use his statement against him": Lee (1950) 82 C.L.R. 133 at 154, Van der Meer at 666, Duke (1989) 63 A.L.J.R. 139 at 141, and that appears to depend principally upon whether the unfairness was of such a kind as to induce, or be likely to induce, unreliable evidence: Van der Meer at 666,
Cleland (1982) 151 C.L.R. 1 at 36, Duke at 141, Foster at 559, 563, 564. It should be noted that Brennan J in Duke at 141 would extend the relevant protection to the accused whose confession might not have been made at all if the investigation had been properly conducted. Here, the element of unreliability is absent; there is no reason to doubt the correctness of what the appellant said to Blatch.
If a confession is voluntary and it is not unfair to admit it, it is difficult to conceive of a case for exclusion on the public interest ground: Duke at 142, Cleland at 9, 34, 35; but such cases may occur: Foster at 557; see also Pollard at 196, 197. In Pfennig (No. 1) (1992) 57 S.A.S.R. 507, a case with some similarities to the present, Cox J. excluded confessional evidence; but we do not find it necessary to determine whether that case is consistent with the High Court decisions being discussed. There were, as the trial judge pointed out, factual differences of significance between Pfennig (No. 1) and the present case.
The relatively narrow scope of the discretion to exclude on public policy grounds is illustrated by the decision of this Court in Stead (1992) 62 A. Crim. R. 40; and some of the considerations which are relevant to the exercise of that discretion are discussed at pp. 48 and 49. In Davis (unreported, 18 December 1992) this Court upheld a trial judge who had exercised his discretion in favour of letting in evidence of conversations between the accused and police involving deception on the part of the latter and misuse of an opportunity arising from a need to transport the accused to court.
But Van der Meer itself is some authority in favour of the
view that irregular and oppressive methods of interrogation will
not necessarily preclude an exercise of the discretion to admit
the evidence obtained. It appears from the principal judgment
that the applicants were not cautioned when they should have
been. The interviews from time to time assumed the character of
cross-examination and an aggressive, undesirable style of
interrogation was adopted: 665. Further, the complainants (of
rape and assault) were presented to one of the applicants and
recounted what had happened to them; that applicant was invited
to question them - a procedure "having about it the air of a
trial before anyone had been charged". Nevertheless, the
majority of the Court was not persuaded that the trial judge or
the Court of Criminal Appeal, which upheld the exercise of
discretion in favour of the admission, had misapplied the
relevant principles (667).
The methods used in Van der Meer, described in a general way in the principal judgment, are discussed in more detail in that of Deane J., whose conclusions differed from those of the majority. Some aspects emerging from his Honour's exposition of the circumstances are that one of the applicants, Ayliffe was (in the view of Deane J.) held in custody at a police station for about two hours after he had told the police that he wanted to go, and after he had made clear his desire to say nothing; nevertheless, he was subjected to an "accusatory cross- examination" (670). His Honour summed up the procedures involved as including:
"The holding of the applicants in unlawful custody; interrogation without adequate or timely caution; disregard of the right to silence; persistent hostile (and sometimes demeaning) cross-examination; persistent (and sometimes misleading) selective use, in the course of such hostile cross-examination, of allegations asserted to have been made by others; persistent requests to explain why others would make such allegations; and, worst of all, in the case of Storhannus, a kind of police trial by confrontation. In the case of Ayliffe, who could not have had more than a few hours' sleep on the previous night, the intermittent questioning at the police station commenced at approximately 9.30 a.m. and did not end until after midnight."
Even allowing for Deane J's having, apparently, taken a more serious view of the matter than did the majority, Van der Meer was a case where the methods of police investigation used were considerably more remote from the ideal than those used here. The appellant cannot point to any error in principle in the way in which the trial judge decided the question; nor can it be said that his Honour misapprehended the facts or reached a result so unreasonable as to suggest error in the method of decision.
We can see no basis on which the Court could reverse the trial judge's view as to the admission of Exhibit 1; indeed, we agree with his Honour's conclusion on the point. The second argument, that the conviction is unsafe, depends on the contention that the content of Exhibit 1, considered with the "clarification" of it referred to above, did not implicate the appellant in the Glen Hotel robbery - in which, it was common ground, Blatch took part. That is also unsustainable, and so the appeal fails.
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