R v Knight (No 1)

[2009] QSC 448

SUPREME COURT OF QUEENSLAND

CITATION:

The Queen v Mark Dempsey Knight & Ors (No 1) [2009] QSC 448

PARTIES:

THE QUEEN

V

MARK DEMPSEY KNIGHT

FILE NO/S:

49/08

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

29 May 2009

DELIVERED AT:

Rockhampton

HEARING DATE:

27, 28, 29 May

JUDGE:

McMeekin J

ORDER:

THE ALLEGED CONFESSIONAL STATEMENTS ARE NOT ADMISSIBLE.

COUNSEL:

Mr G McGuire

SOLICITORS:

Legal Aid Office

1. Mark Dempsey Knight is charged, jointly with Wesley Robert Williams and Wayne Thomas Robertson, with the murder of Robert James Buckley.  He has pleaded not guilty.

1. This is an application brought pursuant to s 590AA of the Criminal Code. The prosecution wish to lead evidence of confessional statements said to have been made by Knight at various times to police officers.  Knight objects to their admission into evidence.

1. Although originally in dispute, a conversation that occurred on 13 April 2006 is conceded by the Crown to be inadmissible.

1. The grounds for objection are:

1. The statements were not voluntarily made as at the time they were made Knight was operating under an inducement. Section 10 of the Criminal Law Amendment Act 1894 is said to require their rejection.

2. The statements were illegally obtained. There are two arguments. The first is that the provisions of s 420 of the Police Powers and Responsibilities Act 2000 and s 36 of Schedule 10 to the Police Powers and Responsibilities Regulations 2000 were not complied with.  Secondly, it is submitted that the provisions of s 439(2) of that Act were not complied with.

3.          On the assumptions that the statements were made voluntarily, but obtained unlawfully, in the exercise of a discretion under the Bunning v Cross principles,[1] it would not be in the interests of justice to admit the statements because:

[1](1978) 141 CLR 54

(a)        they are equivocal;

(b)        Knight is an Aboriginal person and the police failed to comply with the statutory provisions designed to safeguard his interests when being questioned;

(c)        Knight has a reading level of 2/5 on the National Reading Scale;

(d)        Knight had been removed from NSW against his will immediately before the disputed conversations commenced;

(e)         Knight had declined to speak to police on two occasions prior to the first of the relevant conversations that of 13 April 2006;

(f)        Knight had made known to the police on each occasion that he spoke to them that he would not speak to them without first speaking with his solicitor but despite that the police persisted in interviewing him;

(g)        the persistent attempts to question Knight were in breach of the provisions of s 35 of Schedule 10 to the Police Powers and Responsibilities Regulations 2000 and the police approach involved a failure to follow s 418 of the Police Powers and Responsibilities Regulations 2000;

(h)        whether there was an inducement by persons in authority in the legal sense or not the evidence indicates that Knight was operating under a powerful desire to get back…