R v McMillan - [2010] QSC 309

SUPREME COURT OF QUEENSLAND

CITATION:

R v McMillan [2010] QSC 309

PARTIES:

R

(respondent)

v

BEAU JOSEPH McMILLAN

(applicant)

FILE NO/S:

Indictment No 157 of 2010

DIVISION:

Trial

PROCEEDING:

Application under s 590AA Criminal Code

ORIGINATING COURT:

Brisbane

DELIVERED ON:

27 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2010

JUDGE:

Byrne SJA

ORDER:

1. The evidence of a conversation, said to have occurred between the Applicant and Detective Sergeant Daniel Collins and Plain Clothes Constable Kelly Hutley shortly after 7.15am on 29 April 2009 (“the disputed conversation”), is inadmissible.

2. The matter be adjourned to the Supreme Court Sittings at Brisbane on 3 September 2010.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – Records of interview – Other matters – where applicant charged with serious drug offences – where applicant made admissions which were not electronically recorded – where interviewing police officer made notes but did not comply with the requirements of the Police Powers and Responsibilities Act 2000, s 437 – where applicant contends that the evidence of the admissions is inadmissible at trial – whether the Court’s discretion under s 439 to admit the “record” could be exercised – interpretation of s 439

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – Records of interview – Other matters – where applicant charged with serious drug offences – where applicant made admissions which were not electronically recorded – where interviewing police officer made notes but did not comply with the requirements of the Police Powers and Responsibilities Act 2000, s 437 – where applicant contends that the evidence of the admissions is inadmissible at trial – circumstances in which evidence of the admissions is admissible

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – Records of interview – Other matters – where applicant charged with serious drug offences – where applicant made admissions which were not electronically recorded – where interviewing police officer made notes but did not comply with the requirements of the Police Powers and Responsibilities Act 2000, s 437 – where applicant contends that the evidence of the admissions is inadmissible at trial – factors the Court may have regard to under s 439

Acts Interpretation Act 1954, s 14B, s 14C
Evidence Act 1977

Police Powers and Responsibilities Act 2000, s 415, ss 436 – 439

A Raptis & Sons Holdings Pty Ltd v Commissioner of Stamp Duties (No. 1) [1999] 1 Qd R 458, cited
Herring v United States No. 07-513, slip op., US, 14 January 2009; 172 L Ed 2d 496 (2009), cited
Kelly v The Queen (2004) 218 CLR 216, cited
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, cited
R v Faumuina [2004] QSC 264, followed
R v Gaffney, ex parte Builders Registration Board of Qld [1987] 1 Qd R 90, cited
R v Smith (2003) 138 A Crim R 172, applied, questioned
R v Stead [1994] 1 Qd R…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McMillan

Details

AGLC: R v McMillan [2010] QSC 309
Case: [2010] QSC 309
Decision Date: 27 August 2010

CaseChat Overview and Summary

In the District Court of Queensland, the case of R v McMillan involved a criminal proceeding against the applicant, who was charged with serious drug offences. The applicant contested the admissibility of certain admissions made during an interview with police officers, which were not electronically recorded. Instead, the interviewing officer, Detective Sergeant Daniel Collins, made handwritten notes during the interview. The applicant argued that these notes did not comply with the statutory requirements under the Police Powers and Responsibilities Act 2000, particularly section 437, and therefore the admissions should be deemed inadmissible.

The court was required to determine whether the evidence of the admissions could be admitted under the Court’s discretion pursuant to section 439 of the Act. The legal issue centered on the interpretation and application of section 439, specifically the circumstances in which evidence of admissions not electronically recorded but documented in notes might be admissible. The court also needed to consider the factors it could take into account under section 439 when exercising its discretion.

The court found that the handwritten notes did not comply with the statutory requirements and thus the evidence of the admissions was inadmissible. The court exercised its discretion under section 439 but determined that it could not be exercised in a manner that would allow the admissions to be admitted as evidence. The court highlighted that the failure to electronically record the interview was a significant procedural breach that undermined the reliability and admissibility of the notes. As a result, the evidence of the conversation, said to have occurred between the applicant and the police officers on 29 April 2009, was ruled inadmissible. The matter was subsequently adjourned to the Supreme Court Sittings at Brisbane on 3 September 2010.

Orders

Orders of the court

1. The evidence of a conversation, said to have occurred between the Applicant and Detective Sergeant Daniel Collins and Plain Clothes Constable Kelly Hutley shortly after 7.15am on 29 April 2009 (“the disputed conversation”), is inadmissible.

2. The matter be adjourned to the Supreme Court Sittings at Brisbane on 3 September 2010.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v McMillan [2010] QSC 309
PARTIES:	R (respondent) v BEAU JOSEPH McMILLAN (applicant)
FILE NO/S:	Indictment No 157 of 2010
DIVISION:	Trial
PROCEEDING:	Application under s 590AA Criminal Code
ORIGINATING COURT:	Brisbane
DELIVERED ON:	27 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2010
JUDGE:	Byrne SJA
ORDER:	1. The evidence of a conversation, said to have occurred between the Applicant and Detective Sergeant Daniel Collins and Plain Clothes Constable Kelly Hutley shortly after 7.15am on 29 April 2009 (“the disputed conversation”), is inadmissible. 2. The matter be adjourned to the Supreme Court Sittings at Brisbane on 3 September 2010.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – Records of interview – Other matters – where applicant charged with serious drug offences – where applicant made admissions which were not electronically recorded – where interviewing police officer made notes but did not comply with the requirements of the Police Powers and Responsibilities Act 2000, s 437 – where applicant contends that the evidence of the admissions is inadmissible at trial – whether the Court’s discretion under s 439 to admit the “record” could be exercised – interpretation of s 439 CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – Records of interview – Other matters – where applicant charged with serious drug offences – where applicant made admissions which were not electronically recorded – where interviewing police officer made notes but did not comply with the requirements of the Police Powers and Responsibilities Act 2000, s 437 – where applicant contends that the evidence of the admissions is inadmissible at trial – circumstances in which evidence of the admissions is admissible CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – Records of interview – Other matters – where applicant charged with serious drug offences – where applicant made admissions which were not electronically recorded – where interviewing police officer made notes but did not comply with the requirements of the Police Powers and Responsibilities Act 2000, s 437 – where applicant contends that the evidence of the admissions is inadmissible at trial – factors the Court may have regard to under s 439 Acts Interpretation Act 1954, s 14B, s 14C Evidence Act 1977 Police Powers and Responsibilities Act 2000, s 415, ss 436 – 439 A Raptis & Sons Holdings Pty Ltd v Commissioner of Stamp Duties (No. 1) [1999] 1 Qd R 458, cited Herring v United States No. 07-513, slip op., US, 14 January 2009; 172 L Ed 2d 496 (2009), cited Kelly v The Queen (2004) 218 CLR 216, cited Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, cited R v Faumuina [2004] QSC 264, followed R v Gaffney, ex parte Builders Registration Board of Qld [1987] 1 Qd R 90, cited R v Smith (2003) 138 A Crim R 172, applied, questioned R v Stead [1994] 1 Qd R…