R v Leanord
[2012] QSC 425
•20 November 2012
SUPREME COURT OF QUEENSLAND
CITATION:
R v Leanord [2012] QSC 425
PARTIES:
THE QUEEN
v
CRAIG ANTHONY LEANORD
(Defendant)
FILE NO/S:
Indictment No 250 of 2012
DIVISION:
Trial Division
PROCEEDING:
Pre-trial hearing
DELIVERED ON:
20 November 2012
DELIVERED AT:
Brisbane
HEARING DATE:
27, 28 August 2012, 11 September 2012
JUDGE:
Douglas J
ORDER:
The prosecution may lead evidence at the trial of the conversations contained in the second part of the record of interview conducted on 18 April 2011
CATCHWORDS:
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where the applicant challenges the admissibility of part of a police record of interview – where the applicant argues the prosecution cannot prove admissions made in that part of the interview were made voluntarily – whether the confession was voluntary – whether the confession was induced by any promise, threat or inducement
EM v The Queen (2007) 232 CLR 67, cited
Foster (1993) 66 A Crim 112, cited
R v Bodsworth [1968] 2 NSWLR 132, referred
R v Clark [1970] 1 NSWLR 289, cited
R v Howarth [1973] Qd R 431, referred
R v McDermott (1948) 76 CLR 501, cited
R v Swaffield (1998) 192 CLR 159, cited
Tofilau v The Queen (2007) 231 CLR 396, referredCOUNSEL:
M R Byrne SC for the Director of Public Prosecutions (Qld)
R A East for the applicant
SOLICITORS:
Director of Public Prosecutions (Qld)
Legal Aid Queensland
The applicant defendant challenges the admissibility of part of an interview between him and police on 18 April 2011. His argument is that the prosecution cannot prove that the admissions in that part of the interview were made voluntarily. Alternatively, his counsel submits that I should exercise my discretion to exclude the evidence.
Background
The applicant is alleged to have lit a fire in the downstairs area of his former girlfriend’s home early on Sunday morning, 17 April 2011. Two people in the house died while the former girlfriend suffered severe injuries from the fire.
The defendant was interviewed by police on Monday, 18 April 2011. The interview was recorded on two DVDs. When the first DVD was almost full, that part of the interview ceased. He was informed of his rights at the start of the interview. It occurred in the presence of his father, Robert Leanord, and he made no relevant admissions by the time the first part of the interview concluded. The account he then gave was not consistent with him having visited the house where the fire occurred at the relevant time. He does not argue that there was any impropriety by police to that stage.
His version to that point was that he had spent Saturday night with a male friend, that he returned to the caravan park where he lived early on the Sunday morning and then set out at about 3.00am to 3.30am to visit his father at Bribie Island. His father’s mother had died recently and he said he wished to speak with him about how he was coping. The detectives interviewing him were sceptical of that version.
There was a break of about 45 minutes between the first part of the interview and the second caused by difficulties the interviewing officers had with the recording equipment. The first part of the interview ceased at 1.40pm and the interview resumed at 2.26pm. During the second part of the interview, the defendant admitted taking petrol to his former girlfriend’s house and using it to light a fire on a bed downstairs under the house, intending only to scare her.
The events during the interval between the two parts of the interview
There were two detectives interviewing the defendant, Detective Senior Constable Wheeler and Detective Sergeant Ford. Detective Wheeler, during the break, was principally occupied in dealing with the problems with the recording system. Detective Ford left the interview room with the defendant and his father. During the break he spoke with the defendant and his father. There was evidence before me about those conversations. Unfortunately, they were not recorded on Detective Ford’s personal digital recording device, although he had it with him. The gist of them was, however, repeated on the recommencement of the recording, but further evidence of those conversations has muddied the waters to some extent about what actually happened during the interval.
It is most useful to commence with the earliest record of what occurred. That appears in the transcript of the interview after it recommenced and after the relevant warnings were given again:[1]
[1]See exhibit 3 pp 72-74. “Robert” is the defendant’s father (emphasis added).
“FORD Okay, so we’ll continue on? Now, before I ask you any more questions Craig, I just want to go over some things that occurred when we suspended the interview, ‘cause we ran out of room on the other disc and you heard that beep.
LEANORD Yeah.
FORD It was very hot in here and we said to you’s did you want to go outside for a cold drink and you said I want to have a cigarette. Went outside, had a couple of cigarettes, I had some conversation with you, your dad was out there, alright?
LEANORD Yeah.
FORD We had some conversation and I spoke to dad and I said dad, do you want to have a talk to Craig. You’s were given some private time?
LEANORD Yeah.
FORD Is that right?
LEANORD Yes.
FORD Is that true?
ROBERT That’s correct yes.
FORD You’s had probably maybe fifteen, twenty minutes together.
LEANORD Mm.
FORD Outside the back police car park here, is that right?
LEANORD Yes.
ROBERT Correct.
FORD Did we take you anywhere else?
LEANORD No.
ROBERT No.
FORD Okay. From that we’ve went out a couple of times, in and out and we had brief conversations with you. I don’t, do you agree we did not discuss the intricacies of what we’re investigating at the moment?
ROBERT Correct.
FORD Okay. We never told you Craig, I want to ask you these questions, they’re coming out when the tapes come back on, I want you to give me these answers, or anything like that?
LEANORD No.
FORD No. After you had time with your dad, we’ve popped out a couple more times, so then we come back, trying to get this thing up and running again. You’s come back into the room and at that time, you requested to have a brief chat with me.
LEANORD Mm.
FORD We’ve gone outside, just outside here and you said I want to, can you remember, (inaudible) you said I want to tell you exactly what happened?
LEANORD Yes.
FORD And I’ve said to you okay Craig, well let’s go back inside and put the interview back on.
LEANORD Yeah.
FORD And you can have your say then.
LEANORD Yeah.
FORD Do you agree with everything I’ve said to you then?
LEANORD Yes.
FORD Is there anything I’ve left out?
LEANORD No.
FORD Has any threats been made by me or Detective Wheeler?
LEANORD No.
FORD Have we physically assaulted you in any way?
LEANORD No.
FORD No. Alright.
LEANORD Not yet, no didn’t, sorry no.
FORD And you don’t believe that’s going to occur.
LEANORD No of course not.
FORD Are you happy with that Detective Wheeler?
WHEELER Yes, certainly am.”
Immediately after that passage the defendant confessed that he had lit the fire on the bed under the house. There was later discussion at the conclusion of the whole interview as follows:[2]
[2]See exhibit 3 pp 104-105 (emphasis added).
“ROBERT I’m satisfied with the way that the (inaudible) interview’s been conducted and I’d like to thank you for the way that you’ve conducted and helped him get through it, but.
LEANORD All I was able to tell you is what really happened. I’m very sorry.
FORD So are we, so are we. (Inaudible) you would agree that we haven’t done anything untowards, we haven’t done anything shufty here.
ROBERT No.
FORD Alright. Have you got any complaints?
ROBERT No, got no complaints. If anything I said you have my thanks for helping him get through the, bring it out.
FORD Alright.
LEANORD I didn’t want to run forever, I didn’t want any of this to happen.
ROBERT No we know you didn’t mate.
WHEELER Okay. Now Craig, has any threat, promise or inducement been made to you to participate in this interview?
LEANORD Um.
ROBERT I’d probably (inaudible)[3] if he didn’t come. But no.
[3]The defendant accepted that this passage should have read: “I’d probably (or I promised to) beat the shit out of him if he didn’t come” but that it was a jocular statement by the father.
LEANORD No, to participate, no. But I did have, I keep forgetting.
FORD Warren mate, just call me Warren.
LEANORD Warren. I did have Warren’s assurance when we spoke out the back that if I told, I’m going to come in and tell him the truth and that he’ll do his very best to see that it is dealt with properly and that I’m not treated as a hardened criminal because I’m not and that you know, he said.
FORD Just to clarify that Craig, do you agree that conversation took place in the greater conversation with your dad.
LEANORD Yeah.
FORD Myself and you and you spoke to your dad.
LEANORD Yep, yep it was part of other conversations and stuff.
FORD And you asked me and I said well.
LEANORD I come down and asked for your help.
FORD Yeah.
LEANORD And I asked you that said if I come and tell you everything absolutely true will you try and make sure they get the story right when it comes to fucking sentencing.
FORD And I said to you the truth always is the right story.
LEANORD Yes you did.
FORD And you don’t have to worry about getting it right when you tell the truth.
LEANORD Yes, that’s right.
FORD And then we’ve come here. Is that true Bob?
ROBERT That’s true yeah.
FORD Okay. We didn’t take you aside and hold you up against the wall.
LEANORD No, no. God no, no. No none of that.
FORD Alright mate.
WHEELER Alright. Look I’m going to conclude this interview in a second. I do have to now formally arrest you Craig.
LEANORD Yeah.
WHEELER In relation to this incident. Okay? And what will happen now is you’re now in our police custody and you’re not free to go.”
Detective Ford’s initial statement did not mention the conversation during the interval break although, of course, it had been referred to in the record of interview set out above. He was later directed by the police prosecutor handling the committal to provide a further statement about the conversation during the break. That statement included this evidence (emphasis added):
“9.… I asked Robert if he wished to speak with his son privately before we recommence the interview.
10.At that time I saw the defendant stand up and walk over to his father’s side and he said words to effect, ‘Could I speak privately with his father’. I said he could and I walked with Detective WHEELER to the entrance of the police building and we had a conversation (I told him I would go back inside and prepare myself and he is to keep the defendant in sight but provide privacy for their conversation).
11.About 15 or 20 minutes later I saw the defendant, Robert and Detective WHEELER enter the interview room. The defendant said to me words to effect, ‘Can I have a private time with you’. I walked out of the interview room with the defendant and stood in the hallway. He said words to effect, ‘I want to tell the truth and if I did would I help him and tell people he wasn’t a bad person and he didn’t mean for things to happen as they did and he wanted his mother to know the truth’.
12.I said words to effect, ‘If he tells the truth it is always better for everyone’.
13.He said words to effect, ‘I did it I lit the fire I’m sorry’.
14.This conversation lasted less then (sic) a minute. I immediately walked the defendant back into the interview room and the interview re-commenced and was recorded on the electronic recording device.”
The defendant points out that the significant words: “I did it I lit the fire …” were not referred to as part of the interval conversation in the discussion just after the recording resumed about what had happened during the break. It was consistent, however, with the admissions made shortly after that part of the second interview.
The defendant’s evidence of what occurred in the interval needs to be set in the context of what occurred generally during that period as described in the police officers’ oral evidence and in that of the defendant and his father.
The defendant said that, during the interval between the two parts of the interview he went outside under a stairwell where he smoked some cigarettes. He said that Detective Ford spoke to him about his job saying that it used to be about putting people in prison but now it was about keeping young blokes out of trouble and trying to keep them out of jail. He said that Detective Ford also said that if things were broken down into smaller steps “if you are somehow involved in some of those steps, then perhaps you’re not to blame for the big picture … .”[4]
[4]T 2-33, ll.30-40.
He also said that Detective Ford told him that he thought he was a “good kid” and did not intend to hurt anyone. He also said that he became persistent saying that one lie can compound another and that he would not get another chance to tell his side of the story. He also said that he saw his father coming and Detective Ford said:
“You don’t want to get your dad in trouble with this either, do you?”[5]
[5]T 2-34, ll.35-42.
Detective Ford denied that these exchanges occurred.
After that, the defendant said that he had a chat with his father and that Detective Ford was around the area. He said that his father told him that the police knew he was lying, which he said shattered him and caused him to repeat to his father what Detective Ford had said to him. He said his father did not try to pressure him one way or another about what to do. He believed that private chat with his father went on for five or 10 minutes.
He agreed that he asked to speak privately with Detective Ford as they went back into the interview room and said that the two of them left that room with his father staying in the interview room with Detective Wheeler.
He said that he and Detective Ford went to the back of the police station towards a covered car park. He said he was concerned about the conversation he had had with Detective Ford earlier about the consequences of lying, how one lie can compound another, and that those concerns were going through his mind as well as his concern about whether his father would get into trouble.
He believed that it was raining when the two of them went outside. He then said that Detective Ford asked him what he wanted to talk about and he said:[6]
[6]See T 2-40, l. 1 to T 2-41 l. 17.
“‘If I was involved in this but didn't want anyone to get hurt,
what would happen?’, and he said, ‘If you were involved, you
would definitely be charged with arson, but it might be
manslaughter and not murder.’‘It might be manslaughter.’?-- Might be. Never said ‘it will
be’, he said, "It might be manslaughter and not murder.’‘And not murder.’?-- Yeah.
All right. Now, at that time did you know the legal
definitions of murder or manslaughter?-- No, I had no idea
what it was. I thought manslaughter was the slaughter of a
person like a cow or something like that, I didn't understand,
but because he'd said that, you know, well, it might be this
and not that, it just sounded - sounded better to me.What sounded better to you?-- He said, ‘It might be
manslaughter and not murder.’, then manslaughter sounded like
it must be better. So, even though I didn't know the legal
definition of it, I knew what the legal definition of murder
was and if it was better than murder, then must be closer to
the result of - you know, not being involved in something but
it still happening sort of thing, so.You have since had, of course, explained to you the
differences between them and the differences in penalty?--
Yep.Did Ford say anything at all about penalty?-- Nope, no,
didn't explain the difference in penalty at all. No.It was just confined to-----?-- I just trusted him, I took
his word for it, that, okay, well, you know, that sounds -
that sounds - okay, you know, sound, like you're trying to
work with me here, like, all right, if that's - if that's what
would happen.All right. Well, after he said that to you, do you remember
saying anything in response?-- After I asked him what would
happen? I said, ‘I want - I want you - I want to change my
story and tell you what happened, but I want you to help me
make sure the Judge knows that I didn't intend to hurt
anybody. I am not a bad person.’ I believe - yeah, ‘I'm not
a bad person, I didn't - you know, I didn't intend for these
things to happen the way they did.’ Yeah. I think that's -
that's what I said to him.All right. Just to be clear about this, this conversation
wasn't just outside the interview room, it was-----?--
Absolutely not.The whole conversation you had-----?-- The whole conversation
was once we were down the back, at bottom corner of the car
park.Did you say anything else to him?-- Where are we? ‘I want to
change my story but I need - I wanted - help me get the story
right. Tell the Judge I'm not a bad person.’ I can't - can't
recall exactly every word that I said to him, but to the best
of my knowledge that's along the lines of what I was saying to
him.What was his response to these things that you were saying?--
He said - he said, ‘I don't think you are a pad person, I
think you're a good kid. It's always better to tell the truth
in situations like this and I can - I can tell the Judge that
you didn't intend to hurt anyone.’ I think he just - he just
kind of said what I said back to me and said, ‘I can - I can’
- virtually said, ‘I can help you with that.’, but repeating
the things that I'd said, he said, ‘I can tell the Judge that
you're not a bad person, I know you're not a bad kid, I know
you didn't intend to hurt anyone.’ See at that point - yeah -
Oh - it's all right. I was just a bit - you know, emotional
and confused and things like that.”
He says it was after that that he told them that he did it and lit the fire but did not intend that anybody should die. After that he said that Detective Ford said that they were going to restart the interview and that he needed the defendant to tell him, amongst other things, that he lit the fire. He said that he had no opportunity to explain to his father what it was that had been discussed.
He said in cross-examination that the conversation at the back of the car park would have taken more than a minute but less than five minutes.[7] When asked to narrow the time period down, he said it was between two and a half minutes to four minutes.
[7]See T 2-53, ll.29-30.
Mr Robert Leanord said he saw Detective Ford with his son down in the garage having a fairly intense conversation. He said that they were about 30 feet away and that he could see his son talking and Detective Ford nodding his head and then Detective Ford talking with his son nodding his head. He could not hear anything. He thought the conversation would have taken a good three to four minutes, maybe a bit longer. Then his son came back towards him, gave him a hug and said “It’s all sorted, dad, it’s okay.”[8] He did not hear Detective Ford say anything about what had happened out there until he was back in the room and said that he was going to pick up from the conversation more formally. Earlier during the interval he had had a conversation with Detective Ford about his marital break-up and the fact that he was English by origin.
[8]See T 2-89, ll.30-31.
He disagreed with the suggestion that Detective Ford and his son were out of the room for less than a minute and could not recall his son saying anything to him about preferring to be charged with manslaughter rather than murder. He had, in fact, been a police officer in England many years before and disagreed with the suggestion that the police had not spoken to him during the break about intending to charge his son with arson or that his son was lying during the investigation. That was relevant to an earlier stage of his evidence where he had said that he had not discussed the intricacies of the investigation with police during the interval between the interviews.[9]
[9]See T 2-102, ll.10-20.
Detective Wheeler observed a general conversation between Detective Ford, the defendant and his father at the back area of the car park at the police station at an earlier stage of the interval break but did not participate in any conversation. He told Detective Ford about the problems he was having with the recording equipment and, at one stage, Detective Ford asked him to remain in the presence of the defendant and his father while Detective Ford went and inspected the equipment himself. He was then about 10 to 15 metres away from the defendant and his father and did not engage in any conversation with them. He observed them talking to each other. Detective Ford then came back to the car park area while Detective Wheeler went inside and later came out to advise the three people that the equipment was ready for a further recording.
When he re-entered the interview room the defendant asked if he could speak with Detective Ford. Detective Ford agreed and Detective Wheeler said that they “momentarily” left the interview room. He and the defendant’s father remained in that room. He did not see where Detective Ford and the defendant went but said that they returned to the interview room no longer than a minute after they left. He believed that the defendant and Detective Ford had their brief conversation just outside the interview room in an area described as being used for a social club at the police station. When Detective Ford returned he told Detective Wheeler that the defendant may be making admissions in a low tone of voice. Detective Ford could not recall making that statement to Detective Wheeler.
Detective Wheeler also denied a conversation suggested to him with Mr Robert Leanord to the effect that he told him that they knew the defendant was lying and that he lit the fire and that he would make it worse for himself if he kept lying. It was also suggested to him that he told Mr Robert Leanord that the defendant would be charged with arson at that stage which he also denied. There was no suggestion of such a conversation in the interview that was recorded after the interval.
He agreed that there could have been a conversation in the car taking the defendant to the watch house after the interviews when Detective Ford may have explained to the defendant that manslaughter is killing someone you did not mean to kill. Detective Ford could not recall such a conversation.
Detective Ford, in his evidence, recalled the defendant saying to his father during the interval that it was good to tell the truth or better to tell the truth or words like that. When the defendant asked him if he could have a private chat when he came back into the interview room after the interval, he agreed and went out of the doorway of that room into what he described as a makeshift area where there was a water cooler about a metre or so away from the doorway to the interview room. It was there that he said the defendant told him he wished to tell the truth and that he wanted Detective Ford to tell people he was not a bad person and that he wanted his mother to know the truth. Detective Ford said that he told the defendant that it was always better to tell the truth about everything and said that it was then that the defendant said to him “I did it - I lit the fire, I’m sorry, I did it” or words to that effect.[10] He said he then immediately returned to the interview room and recorded the admission on the second disc. He said that he gave him no assurance that if he came in and told the truth that he would do his very best to see that the matter was dealt with properly and that he was not treated as a hardened criminal.
[10]See T 1-63, ll.1-5.
He rejected the suggestion made to him in cross-examination that he had turned his personal digital recorder on, explaining a section of the videotape of the recording showing him placing it on the desk in front of him during the interview as a precaution so that it would be ready for him to use in case the system in the interview room failed.
He also explained why he did not use it for the “private chat” with the defendant just before the second interview started because he did not know what it was to be about and did not believe that it would be an extended conversation. He said that he then “entertained what the defendant had said and [we] returned immediately to the room and I did what was applicable and had him make … that admission in the interview.”[11]
[11]See T 1-73, ll.30-35.
He said the paramount issue from his point of view was to get the verbal statement recorded. He said that he did not put into the record the admission made to him during the brief conversation that the defendant “did it” and lit the fire because he wanted him to give his “free flowing” version of what he wanted to say.[12] He also denied the suggestion put to him that he had a conversation with the defendant where he said that his job used to be about putting criminals in jail but now it was more about keeping young blokes out of trouble. He also denied the suggestion that he said to the defendant anything like: “If you look at the whole picture, it can seem like a big thing but if you break it down into smaller actions or steps, maybe if you’re involved in part of it then perhaps you are not to blame for the whole lot, maybe it wasn’t your fault.”[13] He also denied that he gave the defendant any assurance that the judge would be told that he did not mean to hurt anyone, pointing out that it was outside his control to make statements like that.
[12]See T 1-80, ll.45-55.
[13]See T 1-85, ll.45-50.
Nor did he say to him “If you continue with this story, I can take that away and if I can find any part of it to be a lie, then they’re going to throw you in jail and charge you with whatever they want, and no-one will care about what you say because you have been found to be lying.”[14] He agreed, however, that he said it was always better to tell the truth. He also denied suggesting to the defendant at any stage that his father was now involved and that the defendant would not want to get him into trouble.
[14]See T 1-86, ll.25-31.
In cross-examination he also said that he did not respond to the assertion made towards the end of the second interview by the defendant that he, Detective Ford, had said “one little lie can compound and make things a lot worse in the future” because he saw no reason to continue with that conversation and denied that he wished to get away from that conversation and move quickly to another topic.[15] He also explained his failure to respond to what the defendant called his “assurance” when they spoke out the back that if he told the truth Detective Ford would “do his very best to see that it is dealt with properly and that I’m not treated as a hardened criminal …”[16] because, although from his point of view the conversation did not occur in the sense that he gave no assurance that he would behave in that way, and also perhaps because he believed the defendant was confused about what he was saying then. He said his emotional state was obvious at the end of the interview.[17] He saw that he was in an emotional state and decided to finish the interview.
[15]See T 2-13, l.50 - T 2-14, l.25.
[16]See T 2-15, ll.40-50.
[17]See T 2-16, ll.38-40.
Submissions for the prosecution
Mr Byrne SC for the prosecution submitted that the conversation sworn to by the defendant about the virtues of telling the truth and how lies can compound was unlikely to have occurred, particularly if I accepted that Mr Robert Leanord was with the defendant and Detective Ford during the whole of the period outside where such a conversation could have occurred. He also submitted that the defendant’s time estimate for the personal chat he had immediately before the recommencement of the interview did not sit well with his father’s recollection of the events.
In respect of that brief chat, he submitted that I should accept the police evidence that it took about a minute and happened near the entry to the interview room rather than at the back carport. He also pointed out that Detective Wheeler gave evidence that the father did not leave the room, contrary to Mr Robert Leanord’s evidence that he did leave the room and stood at the back door of the police station some distance from Detective Ford and the defendant. He pointed out that the defendant’s evidence was that he spoke to his father after that brief chat back in the interview room, telling him that it was going to be all right.[18]
[18]See T 2-43, ll.5-10.
He also argued that the passage I have quoted from the recommencement of the interview was inconsistent with the versions of the defendant and his father in this Court and inconsistent with what is asserted by them against the police officers so that where there was common ground it tended to support the version of Detective Ford. He argued that where there was consistency between the father and the son, it tended to agree with the police version of events.
He also argued that the passages at pages 104 to 105 of the transcript of the interview referred to that part of the conversation when Mr Robert Leanord was present rather than the brief chat outside the interview room between Detective Ford and the defendant by themselves. That was consistent with Detective Ford saying in that part of the record of interview that the defendant had spoken to his father and that that conversation took place in the greater conversation with his father rather than in the private chat to which the father was not a party. He argued that the defendant’s statement at that part of the interview was not consistent with anybody who had been overborne, pointing out that he later refused to go back to the scene of the fire and to name a dealer supplying drugs to him.
Mr Byrne also argued that there was no inducement contained in Detective Ford’s advice that “the truth always is the right story.”[19] Rather it was a general statement of fact, relying on R v Bodsworth[20] and R v Howarth.[21] The passage in R v Bodsworth is also referred to in Tofilau v The Queen[22] with apparent approval. Mr East for the defendant agreed that such an exhortation to tell the truth should not, by itself, be treated as an inducement.
[19]See exhibit 3 p 105.
[20][1968] 2 NSWR 132, 139 at ll.25-32.
[21][1973] Qd R 431, 436.
[22](2007) 231 CLR 396, 480 at [282].
Alternatively, Mr Byrne argued that even if that statement could amount to an inducement the confession had not been induced by the statement but rather in the exercise of a free choice by the defendant. He submitted that the confession was made once the defendant realised that his interview with police was more than perfunctory in circumstances where he was with his father who expected that he would tell the truth and where, as he said at p 104 of the interview he did not want to “run forever”. He argued that by then it would have been clear to the defendant that his account in the first interview was not believed and that what he wanted to do was to shore up a best outcome for that which he had already decided to do, namely confess. In that case, he submitted that it was substantially a confession made in the exercise of free choice.[23]
[23]See McDermott v R (1948) 76 CLR 501, 511 and Foster (1993) 66 A Crim 112, 128. See also R v Clark [1970] 1 NSWR 289, 292.
He also pointed out that after the interval break there had been a re-administration of the normal warnings which the defendant said he understood in circumstances where he submitted that the defendant appeared to be clearly capable of understanding English at a reasonable level.
In respect of the argument that I should exclude the confession in the exercise of my general discretion to do so, he submitted again that the defendant had exercised a free choice to speak so that the reception of the evidence would not be unfair at the trial.[24] Accordingly, he submitted that because the confession was voluntary and had been established to be so there was no occasion to exercise any discretion to exclude it nor was it unfair to lead it as evidence in the trial.
[24]See EM v The Queen (2007) 232 CLR 67, 103 at [107] and R v Swaffield (1998) 192 CLR 159, 175 at [20], 178 at [22], 188-189 at [50]-[52] and 194-195 at [69]-[70].
Submissions for the defendant
Mr East criticised Detective Ford for his failure to use his digital recorder during the interval conversation and, particularly, in the “private chat” and seized on his failure to adopt into the record of interview the entirety of what was discussed in that chat, particularly the version given by the defendant that he did it and lit the fire. He also submitted that he could have written out that conversation as a diary note and reported it to Detective Wheeler before recommencing the interview. He submitted that the police had not mentioned the private chat in their original police statements on the basis of a view that “the less said about it the better”. That submission does not deal, however, with the fact that it was revealed in the interview that was recorded and the defendant was asked open questions about what had occurred then.
Mr East submitted that I should believe the defendant’s version of events that occurred during the interval, including Detective Ford’s alleged statement that he used to put people into prison but now his job was about keeping young people out of trouble and trying to keep them out of jail, and characterise that as an attempt to soften up the defendant and to make it clear to him that he thought he was lying by speaking about how he did not think that the defendant intended to hurt anyone. He submitted that it was in that context that the conversation between Detective Ford and Mr Robert Leanord about one lie compounding another would be perceived by the defendant together with the alleged statement by Detective Ford that he had his father involved in the matter and would not want to get him into trouble through it. In that context, he pointed to the record of interview in a passage where the defendant is recorded as having said:[25]
“I admit that it was wrong to falsely give accounts of my whereabouts, but having spoken to you’s and believing that officer Warren Ford, after his conversations with me about how one little lie can compound and make things a lot worse in the future, I’ve decided to tell the dead honest truth and admit to what I’ve done …”
[25]See exhibit 3 p 76 (emphasis added).
He submitted that that passage was consistent with the evidence his client gave about the conversation that was denied by Detective Ford and pointed out that Detective Ford made no comment denying such a conversation during the interview. He argued that I should conclude, therefore, that Detective Ford had said something to that effect. Assuming Detective Ford said that, it was not submitted by Mr East that his client took it as a clear threat but rather as something that he needed to think about and as one of the factors that was weighing on his mind. In fact, saying “one little lie can compound and make things a lot worse in the future”[26] is merely a less elegant expression of Sir Walter Scott’s famous couplet from Marmion:
“Oh! What a tangled web we weave
When first we practise to deceive!”
[26]See T 2-13, ll.40-41.
It is more a statement of fact rather than a promise, inducement, or threat. What Mr East submitted did amount to a threat, however, was the evidence his client gave that Detective Ford said that if he could take any part of his story away and find it to be a lie then he could bring it back and charge the defendant with whatever he wanted.[27] That conversation was denied by Detective Ford.
[27]See T 2-39, ll.10-15.
He also submitted that at the end of the interview Detective Ford did not ask the defendant about whether there had been any promises made or inducements offered to him because they might lead to embarrassing answers. It was the case, however, that Detective Wheeler did ask whether any threat, promise, or inducement had been made to the defendant in the passage at the foot of p 104 of exhibit 3 that I extracted earlier in these reasons and which produced the reaction from the defendant set out there.
In that context, Mr East described the passage at pp 104-105 of exhibit 3 where the defendant said, “I did have Warren’s assurance when we spoke out the back that if I told … the truth … he’ll do his very best to see that it is dealt with properly and that I’m not treated as a hardened criminal …” as one which should be seen in the context of the defendant’s evidence before me. That was the passage, not agreed to by Detective Ford, that there had been some discussion of murder as compared to manslaughter in the context that the judge would be told that he did not intend to harm anybody. He submitted that it was likely to have been part of other conversations where Detective Ford had said to the defendant that the truth always is the right story and “you don’t have to worry about getting it right when you tell the truth”[28] to which the defendant agreed. He submitted that that conversation could only sensibly have occurred in the private chat rather than in any general conversation including Mr Robert Leanord.
[28]See T 2-72, ll.1-2.
In conclusion, he submitted that Detective Ford’s admonition to tell the truth was accompanied by him holding out the possibility of manslaughter rather than murder as a verdict coupled with the promise that he would tell the judge that the defendant was not a bad person and did not intend that anyone should die. He submitted that they were the reasons why the defendant changed his attitude and began to confess and that it was while he was alone with Detective Ford that that train of thought began.
Discussion
The essential matters relied upon by the defendant as promises or inducements were the alleged holding out of the possibility of a manslaughter verdict coupled with a promise to tell the judge that he was not a bad person and did not intend that anybody should die. There is no reference to the possibility of a manslaughter verdict in the interview recorded immediately after these inducements are supposed to have been discussed. Nor does the record of interview evidence any promise or agreement by Detective Ford to “try and … get the story right when it comes to … sentencing.”[29] Rather it supports the view that he told him that the “truth always is the right story.”
[29]See exhibit 3 p 105.
Every opportunity was given to the defendant to relate his version of what happened in that private chat at the restart of the interview so that I am sceptical of the truth of the additional evidence from the defendant, particularly about whether reference was then made to the possibility of a manslaughter verdict. He said he was unfamiliar with the term until the events associated with his arrest and there is the distinct possibility that it was discussed in the car trip that occurred after his arrest. If it had been raised during this brief chat one would think that its very unfamiliarity might ensure that the defendant would have mentioned it if it had formed part of that brief conversation.
The transcript does contain references to statements by Detective Ford allegedly to the effect that “one little lie can compound and make things a lot worse in the future.”[30] There is a significant chance that something like that was said, probably to Mr Robert Leanord in the presence of his son earlier in the interval between the two parts of the interview. There is also the statement by Detective Ford that he said to the defendant “the truth always is the right story … and you don’t have to worry about getting it right when you tell the truth.”[31] It seems likely that there was some discussion between Detective Ford and Mr Robert Leanord in the presence of the defendant about the virtues of telling the truth earlier in the interval between the two parts of the interview.
[30]See exhibit 3 p 76.
[31]See exhibit 3 p 105.
My view of Detective Ford’s evidence and that of Detective Wheeler was that their versions of the events that occurred during the interval and, particularly in the personal chat between Detective Ford and the defendant, were more reliable than the versions given, particularly by the defendant. The passages referring to the private chat as “brief” and “just outside here”[32] throw light on the issue related to its timing and location and help persuade me that it is more probable than not that it occurred as related by Detective Ford rather than by the defendant. It seems likely to me, therefore, that it occurred just outside the interview room for about a minute and that Mr Robert Leanord remained in that room while it took place.
[32]See exhibit 3 p 73.
The defendant’s version of events is more likely to be one affected at least by his recollection of the conversations in the presence of his father and is inconsistent with what he actually said about his conversations with Detective Ford at the beginning and end of the second part of the interview.
It is incumbent on the prosecution to establish on the balance of probabilities that this confession was obtained voluntarily. I do not see those statements by the detective supporting the virtues of honesty as being an inducement for the reasons advanced by Mr Byrne. Mr East did not seek to argue to the contrary. I am not satisfied that Detective Ford held out any inducement to the defendant to confess beyond encouraging him to tell the truth. It is relevant that these conversations occurred in circumstances where the defendant was in the presence of his father, apart from the period of the brief personal chat.
I am satisfied that the personal chat that occurred was one of brief duration which Detective Ford then ensured was recorded properly. Although he did not initially refer to the defendant’s admission that he committed the crime and lit the fire and that he told Detective Ford that in the personal chat, the defendant very rapidly proceeded to give that direct evidence spontaneously in response to open questions asked of him early in the second part of the interview.[33] That supports the further submission for the prosecution that the confession was not induced by any promise or threat but in the exercise of the defendant’s own free choice.
[33]See exhibit 3 pp 74-75.
In the circumstances where I am satisfied to the relevant standard that the confession was voluntary, it is not appropriate to exclude it in the exercise of any residual discretion to do that. It was not obtained unlawfully or in circumstances where it would be unfair to admit it.[34]
[34]See Cross on Evidence (Aust ed) paras 33[680]-33[685].
The focus of that aspect of Mr East’s submission was the conversation his client deposed to where Detective Ford was supposed to have said to him that he used to lock people up but now tries to help them. He characterised that as a way of “softening him up”. That, he submitted, was coupled with the further statement attributed to the detective by the defendant that if he could find out any part of his story was a lie, then he could be charged with whatever he wanted to charge him for. He submitted that those statements amounted to further grounds for exclusion of the confession on the basis of lack of voluntariness.
In my view, however, it is more probable than not that Detective Ford made no such statements, that the confession was voluntary in any event, and that no other discretionary ground for its exclusion exists.
Conclusions and order
The mere fact that a significant amount of time, two and a half hearing days, has been taken in this Court to resolve the issue of what was said in this “brief chat” between Detective Ford and the defendant illustrates how desirable it is for conversations between police and suspects to be recorded fully. Where portable recorders are readily available there is every reason to use them, even in a brief break in a more formal interview. Nonetheless, I am satisfied in this case that no threat, promise, or inducement was held out to the defendant to make this confession.
Accordingly, I rule that the prosecution may lead evidence at the trial of the conversations contained in the second part of the record of interview conducted on 18 April 2011.
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