R v Mackay

[2006] QSC 65

SUPREME COURT OF QUEENSLAND

CITATION:	R v Mackay [2006] QSC 065
PARTIES:	THE QUEEN (respondent) v PAUL ANTHONY MACKAY (applicant)
FILE NO/S:	Indictment No. 988/05
DIVISION:	Trial Division
PROCEEDING:	Pre-trial Hearing
ORIGINATING	Supreme Court of Queensland
COURT:
DELIVERED ON:	31 March 2006
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2006
JUDGE:	McMurdo J
ORDER:	Pursuant to s 590AA of the Criminal Code 1899, it is ruled that evidence of the interview of the defendant on 25 February 2004 is inadmissible against the defendant by the operation of s 10 of the Criminal Law Amendment Act 1894
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – VOLUNTARY STATEMENTS – INDUCEMENT – GENERALLY – where the Crown presented an indictment charging the defendant with unlawfully producing and carrying on the business of trafficking in amphetamine and methylamphetamine – where the Crown’s case consists entirely of admissions made by the defendant when interviewed by police at the Maroochydore watch-house on 25 February 2004 – where the defendant applies pursuant to s 590AA of the Criminal Code 1899 (Qld) for a ruling that evidence of those admissions is inadmissible because they were induced by a promise to support the defendant’s application for bail on other charges – whether the Crown disproved on the balance of probabilities that an inducement was made
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – POLICE INTERROGATION – DISCRETION TO EXCLUDE CONFESSIONAL STATEMENTS – where the defendant made certain admissions in relation to producing and trafficking in amphetamine and methylamphetamine – where the defendant stated that the interviewing police officers’ induced him to make the admissions by promising to support the defendant’s application for bail on other charges – whether the admissions by the defendant were admissible
Criminal Code 1899 (Qld), s 590AA Criminal Law Amendment Act 1894 (Qld), s 10
COUNSEL:	D R Kent for the applicant B W Farr for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO J: The Crown has presented an indictment charging the defendant with unlawfully producing and carrying on the business of trafficking in amphetamine and methylamphetamine. Its case consists entirely of admissions made by the defendant when interviewed by police at the Maroochydore watch- house on 25 February 2004. Pursuant to s 590AA of the Criminal Code 1899 (Qld), the defendant applies for a ruling that evidence of those admissions is inadmissible because they were induced by a promise made by the police who interviewed him.

2. He was then in custody upon other charges, for which he was being held in the watch-house ahead of a mention of those charges in the Maroochydore Magistrates Court. The defendant says that he made the admissions because the police who interviewed him promised to support his application for bail on those other charges.

3. Some of the interview was recorded upon an audio tape, but the defendant says that this promise was made in a discussion before the tape was turned on. The question for determination is whether, in fact, police made that promise. The defendant gave evidence before me that the promise was made. It is incumbent upon the Crown to disprove that, upon the balance of probabilities.

4. The defendant was born in 1972 and he has an extensive criminal history dating back to 1990. In that year he was sentenced to twelve months imprisonment upon charges of the unlawful use of a motor vehicle and wilful and unlawful damage to property. In April 1992 he was sentenced to three and a half years imprisonment for breaking and entering a dwelling house with intent and committing an assault with intent to steal, with the use of actual violence and whilst armed with an offensive instrument and in company, together with an offence of unlawful wounding. Later in 1992 he was sentenced to shorter terms which were concurrent with that three and a half year term. In May 1995 he was sentenced to further terms, the highest of which was two years, for break enter and stealing offences, and it was recommended that he be considered for parole after six months. Subsequently he was given non-custodial sentences for further offences, before he was sentenced in 2002 to a term of one year, to be served by way of an intensive correctional order, for offences of receiving. On 13 February 2003, the Maroochydore Magistrates Court extended the operational period of a wholly suspended six month term so that it would expire on 13 February 2004. He was before the Maroochydore Magistrates Court again in November 2003 when he was convicted of breaches of bail undertakings for which he was fined.

5. On 20 January 2004 the defendant failed to stop his vehicle when directed by police, and there followed a high speed chase at the end of which he was taken into custody. On the next day he attempted to escape. He was sentenced for these offences in 2005 but it was upon the charges of those matters of 20 and 21 January 2004 that he was in custody when the interview the subject of the present case was conducted. Those offences were committed during the (extended) operational period of the suspended term I have mentioned.

6. According to unchallenged evidence of the defendant, what then happened, until his meeting with the police who conducted the relevant interview, was as follows. On what must have been 21 January, a magistrate at Maroochydore refused him bail and he was taken to Woodford prison where he remained until the night of 24 February 2004. He was then taken to hospital suffering the effects of drugs he had taken whilst in custody. He was discharged from the hospital early on the morning of 25 February and taken to the watch-house at Maroochydore, because he was scheduled to appear again before the Magistrates Court. He told the officer in charge of the watch-house that he was very keen to be granted bail and asked him what could be done. That officer told him that he would arrange for other police to see him in the watch-house.

7. Later in the morning of 25 February, three police officers came to the watch-house to see the defendant. They were Detective Sergeant Zohn and Detectives Hackenberg and Bentley. Mr Zohn and Mr Hackenberg were detectives of many years experience. According to Mr Zohn, the watch-house keeper had called him and requested that he speak to the defendant. None of them had ever met the defendant or had any involvement in any investigation of him, although Mr Zohn said that he had some interest in an investigation which concerned the defendant’s then sister-in-law. He says that when he arrived at the watch-house, he had a short conversation with the watch-house keeper before meeting the defendant, although he thinks it was the defendant who told him of why he was in custody, which he understood were “traffic related matters”.

8. Each of those police officers gave evidence in this application. Mr Zohn and Mr Hackenberg agreed with the defendant that only part of their meeting was tape recorded, and that there were discussions before and after that part which was recorded. Ms Bentley said that she was present only from some point during the recorded interview, although that is inconsistent with the recording where she is heard to identify herself at the outset. When that was pointed out to her she simply said that she had no clear recollection of what was discussed.

9. Mr Zohn says that he asked the defendant what it was that he wished to talk to police about, and that the defendant:

   “mentioned dealings in relation to associates that he had which were known to myself. We spoke about the sister of his wife … I had a person interested in that because I was trying to find her with respect to a file I had at the time. We spoke about offences he said he had been committing in relation in drug related matters.”

   Mr Zohn then related a discussion about bail:

   “There was a conversation in relation to bail. I am not sure, and I have been trying to think about it all morning, whether it was before the interview or after. He was in custody, I believe, on traffic related matters and explained to us that he was currently in the watch-house and his bail had been objected to, there was an objection to bail form lodged by the police. I informed him that there was nothing that we could do in relation to this because it was other officers who instigated this objection to bail and the fact that he was in on traffic related matters. Whether that conversation took place before or after (the recorded interview) I have honestly no idea.”

   He said the same in cross-examination, in answer to the suggestion that he had assured the defendant that the detectives would see that he was granted bail:

   “No. I told him there was nothing we could do about it and explained it to him. It was other officers that had taken out the objection to bail and we had no authority or power whatsoever with respect to that, and the fact that it was traffic-related matters.”

10. Mr Hackenberg’s evidence was to the same effect; that is that the defendant effectively asked whether they could help him get bail and was told that they could not.

11. The defendant’s evidence is that in a conversation with the detectives before the tape was turned on, this occurred:

    “… I got the detectives to come in to talk to me about a few other things and asked them if they could help me bail. They said not if I was talking about other people, but if I was talking about myself they would help me …

    They want something that I have done and I said there’s nothing really that I have done that would warrant it and they said “what about” – because they knew the family I was married into and that I knew that I was into drugs and they said “tell us something about you and we will help you get bail”.”

    The defendant then said it was Mr Zohn who made that specific offer.

12. The recorded interview took a little over twenty minutes from 11.40 am. Mr Zohn began the interview by asking the defendant whether he agreed that it was about fifteen minutes earlier that the detectives had come to the watch-house to speak with him and whether he agreed that there had been a discussion in relation to “drug related matters” and “property related matters”. There was this exchange between Mr Zohn and the defendant:

    “Do you agree that you’ve told us that you want to sort your past out, attend here and for you to clean up your past? - I just want to get me life back together and get me kids back.

    so to speak? - Yep

    Okay. Do you agree that you’ve mentioned your kids, that they are your main motivation? – Yep.”

    Unfortunately, the defendant’s earlier request for assistance with bail and whatever had been the detectives’ response were not referred to in the recorded conversation.

13. After the defendant was given the usual warnings, he was asked about activity in the way of producing and trafficking in amphetamines and the receipt of stolen goods from persons to whom he supplied. The defendant then made admissions of extensive production and trafficking over a period of six months from about the middle of 2003. He said that most of his supplies were for goods not for cash and that his customers were other drug dealers, whom he was not prepared to name. He offered a “rough guesstimate” that over that six month period he had received “a couple hundred thousand” which he had spent on his children. Later he said that his conduct of carrying on the business of trafficking probably lasted about two months and grossed “75 grand cash and 25 grand worth of property”. When asked how many times he had manufactured amphetamines, he answered “twenty-one” which he then added was “just a wild guess”. At the end of the interview he was asked whether he had taken part of his own free will and answered “Yeah”. And he was asked whether any threat, promise or inducement had been held out for him to take part in the interview, to which he answered “No”.

14. It is common ground that there was some short conversation after the tape was turned off but there is a dispute as to what was said. The defendant says that Mr Zohn then served him with a Notice to Appear and said to the defendant that he “would get his arse kicked for giving me a Notice to Appear on so many charges”. When that was put to Mr Zohn it was not clearly denied, although Mr Zohn’s evidence was that he did not give a Notice to Appear on that day. Mr Zohn did remember that straight after the tape was turned off, the defendant said words to the effect of “I think I’ve just fucked myself”, to which Mr Zohn replied “Yes, I think you have”. Mr Hackenberg had a similar recollection of much the same statement by the defendant, and Ms Bentley recalled that the defendant said at that point “something about how he had screwed himself over and that was not his original intention”.

15. That afternoon the defendant was granted bail by a magistrate. There is no evidence of what was said to or by the magistrate, apart from the defendant’s account. He says that the prosecutor agreed to bail and that Mr Zohn was present at the hearing. Mr Zohn says he was not there and he remembers that he and the other detectives left Maroochydore immediately after the interview to go to Noosa to execute a search warrant. That is supported by Mr Hackenberg and Ms Bentley.

16. According to Mr Zohn, he went back to the watch-house the next day expecting to see the defendant. Both he and Mr Hackenberg said that they were surprised to find that the defendant had been granted bail. Mr Zohn said that he then attempted to give the defendant a Notice to Appear, by going to the defendant’s house near Nambour. That was unsuccessful but he said that he gave indeed two Notices to Appear to the defendant when he and Mr Hackenberg met the defendant at a café at Yandina on 2 March 2004. Mr Zohn explained the fact of two notices in this way. He said that the defendant wanted to keep from his wife the fact that he was being required to appear on the offences to which he had confessed, so that at the defendant’s request, there was one notice for those charges and a second notice (to be seen by the defendant’s wife) which referred to some items of glassware suspected of being stolen. The defendant did not dispute the evidence as to these notices, apparently conceding that they were then and there given and that the reason for the second notice was as explained by Mr Zohn. As to why the defendant wanted to keep from his wife the nature of these charges was not a matter which was explored in the evidence. But as I have mentioned, Mr Zohn said that he had an interest in investigating the sister of the defendant’s wife.

17. But then a further Notice to Appear was given to the defendant. This one was served on the defendant on 25 April 2004, by which time the defendant was back in custody although not for the present matters. In that Notice to Appear, the offences were described as one charge of trafficking, 21 charges of production of a dangerous drug and 250 charges of the supply of a dangerous drug. They required the defendant to appear on 11 June 2004. They are the charges upon which he was committed for trial by a magistrate on 28 June 2005.

18. There is no record of the Notices to Appear given to the defendant on 2 March 2004. Copies of those notices should have been sent to the Magistrates Court and filed within police records. But Mr Hackenberg said in evidence that he simply lost the copies. Mr Zohn was unable to say why a further notice, that is the April notice, had to be given.

19. From these facts, there are three matters in particular which are relied upon by the defendant. The first is the inherent likelihood that he would ask for detectives, whom he did not know, to come to the watch-house so that he could make a confession of serious crimes unless he saw some benefit for him, which he says was his release on bail. Secondly, he points to the fact that he was granted bail in circumstances in which, it is argued, the grant of bail was remarkable. Thirdly, he says that it is remarkable that police did not arrest him on such serious charges rather than following the procedure of a Notice to Appear.

20. As to that first matter, in my view it is more probable than not that the defendant asked for the meeting with detectives because he thought it would help his application for bail. On either his version or that of the detectives, he asked them whether they could assist him to obtain bail. It is probable that at least before the detectives arrived, he thought that he could obtain their assistance at least by providing them with information about the criminal conduct of others. I think it unlikely that he asked for a meeting such as this simply because he wanted to make a confession of all of his criminal conduct and for which he was not under arrest or apparently under investigation. And it is more probable that he made his request for assistance with bail before the recorded interview than after it.

21. To have made such an extensive confession, in the circumstance where the detectives had said that they could not assist with bail, appears irrational. On the other hand, such a confession as the cost of a grant of bail would not appear to be so rational either. Nevertheless the volunteering of this confession in the face of what the detectives say was such a clear refusal of his request seems to be especially unlikely. Of course confessions are sometimes made, which are later regretted although at the time they were made entirely voluntarily. It is not impossible that this defendant was in a state of mind where he felt that he should expose all of his criminal conduct as part of some resolve to change his life, but that is relatively unlikely. It is unlikely that he asked the detectives to visit him so that he could make a confession without being motivated by the prospect of immediate freedom. There is no indication that he had reason to believe that these police officers had information, let alone evidence admissible against him, that he was a drug trafficker and producer. This was not a case where he was apprehended by police who obviously knew something of certain criminal activity and who were pursuing more information and evidence by interviewing a suspect. The fact that he did make such an extensive confession in these circumstances provides some substantial indication that he was made to believe that the detectives would see that he was granted bail.

22. As to the fact that he was granted bail, there is only the defendant’s evidence of what occurred at the bail hearing. As I will discuss, the defendant’s evidence is not persuasive in all respects. However, from the known circumstances which should have affected the outcome of that application, his prospects of obtaining bail were not promising. Not only did he have an extensive criminal history, but it included several convictions for breaches of bail. And he was charged with an offence of attempting to escape from lawful custody. He must have been pessimistic about his bail prospects when he asked the watch-house keeper, and then the detectives, for help. But although his case for bail was not strong, I would not infer simply from the grant of bail that it was supported by the prosecutor and at the instigation of the detectives. Of itself it does not provide a particular reason to not accept the police evidence, but taken together with other circumstances, it is significant.

23. What happened in relation to a Notice or Notices to Appear is curious. Mr Zohn and Mr Hackenberg explained that they proceeded by a Notice to Appear for two reasons. The first is that they were in a hurry to get to Noosa to execute a search warrant upon another matter and Mr Zohn said that they did not have the hours which he said would have been required to charge the defendant on that day. Secondly, they said that they thought it was unnecessary then to do so because the defendant was already in custody. Each of them said that he was surprised to learn that the defendant had been granted bail. Yet according to their evidence they knew very little of the matters upon which the defendant was being held and they could have had no reasonable basis to assume that bail would be refused.

1. Those two matters might have explained a service of a Notice to Appear at the conclusion of the interview and before the police officers left the watch-house. The defendant said in his evidence that he received a Notice at the watch-house. But the evidence of the detectives that they served two Notices upon the defendant six days later, on 2 March at Yandina, was not challenged. Why such notices would have been required if the defendant had been served with a Notice on 25 February is difficult to see. In the QP9 form prepared by Mr Zohn for the police prosecutor on these matters, Mr Zohn wrote that he served a Notice to Appear “at the conclusion of the interview”. Mr Zohn said that this was a reference to the Notice or Notices served on 2 March. It seems difficult to read the expression “at the conclusion of the interview” as a reference to that occasion. Had that Notice been given on 25 February copies of it should be still available. There is no evidence that any search has been conducted which has failed to uncover them. Nor is there evidence, as there is from Mr Hackenberg in relation to the Notices of 2 March, that the copies were lost and not sent to the court and to the relevant police records. Ultimately I think it is more probable than not that no Notice was given to the defendant on 25 February, for otherwise I cannot see the explanation for the Notices of 2 March the giving of which the defendant apparently accepts. Mr Zohn was therefore imprecise in his reference to a Notice “at the conclusion of the interview”. The defendant’s recollection that he received a Notice on 25 February is perhaps explained by an awareness of what Mr Zohn had written in the QP9.

2. But once the 25 February had passed, the two reasons offered for proceeding by a Notice to Appear were no longer relevant. The defendant was no longer in custody on other matters and the detectives were not under the particular time constraints which they say existed on the day of the interview. These were and are very serious charges. Had the defendant decided to flee, the detectives, and in particular Mr Zohn, could have been exposed to particular criticism for not arresting the defendant.

3. The giving of two Notices on 2 March is also curious. It indicates either a preparedness by police to simply help out the defendant, or instead some advantage perceived by them in the defendant’s wife and others not being aware that police had been provided with information which could lead them to other offenders. Then there is the passage of time between 2 March and the service of the Notice of 25 April. Assuming that Mr Hackenberg did misplace the copies of the Notices served on 2 March, there is no explanation for why nearly two months passed before the matter was rectified. No doubt the detectives had other cases to investigate, but on the face of the defendant’s confession, he had been involved in very serious criminal activity.

4. The giving of the two Notices on 2 February and the gap in time before a further Notice was given, suggests that the detectives were not keen to move this prosecution along, and that for some reason they were preferring to leave the defendant in the community. By the time they gave the 25 April notice, the defendant was back in custody on other matters. There is a real likelihood that the detectives believed that they could obtain the defendant’s co-operation in the investigation of other persons. He had refused to do so in the recorded interview, but they may well have believed that he would eventually co-operate. He had told them that he was supplying to other drug dealers. He was also a potentially valuable informer in relation to the movement of stolen goods. Neither Mr Zohn or Mr Hackenberg was able to offer a satisfactory explanation of why, after 25 February, they proceeded by a Notice to Appear and why it took so long. In particular, they did not seem to dispute that it was remarkable that a person to be prosecuted for offences such as these should be given simply a Notice to Appear. All of this leaves me with the impression that the detectives saw some benefit in the defendant’s being on bail, adding to the probability that they had offered to help him get bail.

5. The defendant was not a particularly impressive witness. When asked why he had agreed in the recorded interview that no inducement had been offered to him, he claimed that he was following the directions which Mr Zohn was silently giving him as the interview proceeded. He claimed, in effect, that his answers could all be explained in that way. I do not accept that evidence. As I listened to the tape recording, the questions and answers proceeded at a pace which makes it unlikely that he was being prompted in that way. Nevertheless the fact that I do not accept the defendant’s evidence in its entirety does not mean that I should accept the detectives upon the critical point which is whether they did offer an inducement.

6. Ultimately I am left unpersuaded that no promise about bail was given. The volunteering of this confession without any inducement, in circumstances where the defendant had been under no suspicion but had himself initiated the visit by detectives, was particularly unlikely. Considering also the curious events after 25 February, I do not accept that more probably than not the confession was not induced by a promise of support for a bail application. Accordingly the Crown fails to discharge the onus necessary for the admissibility of this recorded interview. I rule that evidence of the interview is inadmissible at a trial upon this indictment.