R v Moore

[2004] QDC 319

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Moore [2004] QDC 319
PARTIES:	R v Roger Kieran MOORE
FILE NO/S:	94/04
PROCEEDING:	Pre-trial application
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED ON:	17 June 2004
DELIVERED AT:	Brisbane
JUDGE:	B.C Hoath DCJ
CATCHWORDS:	CRIMINAL LAW – CONFESSION – where accused participates in a “drive around” interview with police – where accused admits committing burglary type offences – where accused says that he was told by a Sergeant that if he confessed to 10 places he had broken into, the police would not oppose bail – where police deny such a conversation – turns on own facts and assessment of credibility.

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal
offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for

their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those

categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

17062004 T01/PMD8 M/T CMS61/2004 (Hoath DCJ)

REVISED COPIES ISSUED 1

State Reporting Bureau

Date: 23 June, 2004

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE HOATH

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Indictment No 94 of 2004

THE QUEEN

v.

ROGER KERRYN MOORE

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BRISBANE

..DATE 17/06/2004

JUDGMENT

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40

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17062004 T01/PMD8 M/T CMS61/2004 (Hoath DCJ)

HIS HONOUR: This is the matter of Roger Kerryn Moore. On the 27th of April 2003 the	1
accused Roger Kerryn Moore participated in what is commonly referred to as a drive around
in the suburbs of Taringa, Graceville and Oxley in the company of police officer Senior
Constable David Dunn, Sergeant Stephen Hatton and Senior Constable Glen Roach.
During that drive around the accused admitted committing an offence at each of the 10	10
residences visited. Those admissions were recorded outside each residence using a small
handheld tape-recorder.
There is an indictment before the Court charging the accused with eight counts of burglary,
one count of attempted burglary and one count of fraud. Those counts are based on the
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admissions, hereinafter referred to as the confession, that the accused made in the course of
the drive around.
Prior to the drive around the accused was seen at approximately 11 a.m. by Dunn and Sutton
outside a phone box in Oxley Road, Graceville. At the phone box the accused was searched
and found to be in possession of a syringe and two Canadian $1 notes. Both officers say that
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they had a belief that he was wanted for questioning in relation to an outstanding crime report
and say that after being asked to voluntarily accompany them back to the Acacia Ridge Police
Station the accused did so.
Both police officers state that they have no recollection of the accused being questioned at the
phone box about the Canadian currency. The accused Moore says that when the police	40
approached him they asked him to hop in the car as they wanted to talk to him about a cheque.
The accused says that when he was searched and the police found the Canadian currency they
asked was it from the place where the cheque had come from and he replied yes.
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17062004 T01/PMD8 M/T CMS61/2004 (Hoath DCJ)
On the way back to the Acacia Ridge Police Station the accused says he was told by Sergeant	1
Hatton that if he gave them 10 places, that is confessed to 10 places he had broken into, the
police would not oppose bail. The police deny that such a conversation occurred and say that
the question of bail only arose after they had returned to the police station after the drive
around.

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There is no tape-recording of any conversation which occurred at the time the accused was

located at the phone box or when he was being driven back to the police station as the police

state that at the time they were not in possession of a tape-recorder.

The accused challenges the admissibility of the confession and submits that it should be

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excluded pursuant to section 10 of the Criminal Law Amendment Act or on the grounds that it

was not voluntary at common law in that it was preceded by the promise or inducement that

the police would not oppose bail if he gave them 10 places.

Alternatively, the accused argues that the confession should not be excluded in the exercise of

my discretion as there was no contemporary recording of the conversation that occurred at the

phone box or in the police car.

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It is well-settled that under section 10 of the Criminal Law Amendment Act and at common

law the onus rests on the Crown to establish on the balance of probability that a confession

has not been preceded by a promise or an inducement such as to render it inadmissible under

section 10 or involuntary at common law.

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In this application as both counsel acknowledge the determination of that issue depends on an

assessment of the credibility of the respective witnesses in relation to whether or not the

promise alleged by the accused in relation to bail was made.

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17062004 T01/PMD8 M/T CMS61/2004 (Hoath DCJ)

Mr Smith submitted that I would not accept that there was no conversation at the phone box	1
about the Canadian dollars found on the accused. Two Canadian dollars were taken during a
breaking and entering in which a cheque was also taken. Mr Smith submitted as the police
knew about the crime report relating to the cheque they would have known about the two
Canadian dollars and on finding them on the accused it is inconceivable, he submits, that they
would not have asked him about them at the time.	10
Senior Constable Gunn said he didn't know the details of the report in which the accused was
a suspect. Sergeant Hatton said he believed it related to some cheque fraud. It is
understandable that whilst Sergeant Hatton knew about the cheque he did not relate the
Canadian currency to that offence.
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The crime report in respect of the cheque fraud had only been made three days earlier and the
accused was specifically named in that report as a suspect. There was no reference in that
crime report to the Canadian currency. That report did relate back to an earlier crime report
made nine days earlier in which reference was made to the Canadian currency. In that earlier
report the accused was not named as a suspect and the Canadian currency was only a minor,
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although perhaps distinct, part of the property stolen.
I accept the evidence of Gunn and Hatton that the accused was not questioned about the
Canadian currency at the phone box. Mr Smith submitted that Senior Constable Dunn was
not telling the truth when he said back at the police station there was no discussion of
offences other than the burglary and fraud involving the cheque and the Canadian currency.	40
He submitted that the offence at 37 Linda Street must have been discussed as at offence,
according to the crime report, was reported to Senior Constable Dunn at 1 p.m. on the 27th of
April 2003, which was, Mr Smith submitted, before they left on the drive around.
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17062004 T01/PMD8 M/T CMS61/2004 (Hoath DCJ)
The time referred to in the field report is 1.44 p.m. That time would appear to be incorrect as	1
the next time referred to in the interview is 12.55 p.m. and subsequent times referred to are
only consistent with the first time referred to being incorrect. The first time referred to
should, it would appear, be 12.44 p.m. not 1.44 p.m. Custody records support this as they
indicate that the accused left the Acacia Ridge Police Station at 12.20 p.m. to commence the
drive around.	10
In that case it would be consistent that 37 Linda Street was first referred to by the accused on
the drive around with the report being written up after the police returned to the police station
at the conclusion of the drive around. The time of 1 p.m. being an estimate, the actual time
they were at Linda Street, according to the recorded interview, was 1.25 p.m.
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The police records show that the accused arrived at Inala Police Station at 6.15 p.m. The
accused in his evidence stated that after the drive around he was taken back to Acacia Ridge
Police Station before being taken to Inala, whereas the police in their evidence said that he
was taken to Inala watch-house.
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That matter initially seemed as if it could be of some significance in determining credibility.
It was, however, never put to either police officer that the accused was taken to Acacia Ridge
Police Station before going to Inala. The fact that both police officers said they went to Inala
watch-house and did not refer to going back to Acacia Ridge in the interim would not lead me
to conclude that they are not truthful witnesses.
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It was at Inala where he was formally charged and where he was released on bail. Nothing
untoward is alleged by the accused to have occurred between the conclusion of the drive
around and his being released on bail at Inala watch-house.
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There is no reason in those circumstances for either police officer to wish to lie or attempt to mislead the Court in respect of that issue. The accused produced a piece of paper which he claims was given to him by the police. That piece of paper has two names on it and

what would appear to be a telephone number. The accused stated that those names were
the names of lawyers and he believes that it was Sergeant Hatton that wrote the names.

That piece of paper has turned out to be a bit of an enigma as there is no evidence as to whether either of the names on the piece of paper are those of lawyers or what person or premises the phone number relates to.

All three police officers present during the drive-around deny that they gave the accused a piece of paper. They were each asked to supply a sample of their handwriting. None of the samples provided would seem to bear any resemblance to the writing on the paper. Both Dunne and Hatton had no idea that they were to be questioned in relation to the piece of paper and both not only denied knowledge of it, but denied knowing persons with the names referred to.

The evidence before me does not lead me to conclude that that piece of paper was given to
the accused by the police. Mr Smith said it is likely that the accused would have raised
the question of bail before the drive-around as he would have been concerned about it as
he was withdrawing from heroin and was feeling sick. The fact that he had previous
convictions for breaching bail would have also, Mr Smith said, concerned the accused as
to whether or not he would get bail. In further support of that submission, Mr Smith said
that unless there was the understanding that the police would not oppose bail before the

accused went on the drive-around, the police would have been unlikely to have not

WARNING: The publication of information or details likely to lead to the identificat ion of persons in some proceedings is a criminal

opposed bail when they later checked his criminal record.

offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for

their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those

categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

The submission that a person would probably not admit offences unless there was some inducement or benefit such as the offer of bail always sounds attractive, but experience shows that persons do regularly admit offences without any inducement or other pressure.

The fact that the police did not oppose bail despite his history is not surprising as accused regularly continue to get bail even when they have previous convictions for breaching it.

In this case, the accused was known to the police. They knew his family, where he lived, and significantly he was a witness to be called to give evidence in relation to some armed robberies which Sergeant Hatton had investigated and which involved an accused who

was at that time held in custody in Brisbane. Those matters could explain why the police
did not oppose bail.

After the police commenced the drive-around, but before they had arrived at the first residence, the police cautioned the accused. At this time they were in possession of a tape recorder. Apart from warning him that he had the right to remain silent, Senior Constable Gunn said to him, "Do you also agree that during the conversation back at Acacia Ridge police station, you volunteered to accompany us on a drive-around of the suburbs Taringa, Graceville and Oxley in relation to breaking and entering offences that have occurred in the past?" To that question the accused replied, "That's right." Later the accused was asked, "Do you agree that there has been no threat, promise or inducement held out to you to answer any of these questions?" To which the accused replied, "Yes."

He was then asked, "Do you know what we mean by that, okay, and that you are doing this drive-around of your own free will?" To which the accused replied, "Yes." The conversation the police say occurred at the police station may have been able to have been recorded contemporaneously. It did arise however, according to both police officers, when the accused was asked if he wished to be interviewed in respect of a couple of outstanding matters - they would have been the fraud and the breaking and entering associated with the cheque, and he replied that there were other offences that he wanted to clean up.

It is understandable that as it was a preliminary request by the police as to whether he wished to be interviewed, it is not surprising that at that time the police had not activated any recording device. Although that conversation could have been put to the accused in more detail when he was subsequently interviewed on tape at the commencement of the drive-around, a summary of that conversation was put to him. He appears to have understood what was being put to him, and yet made no suggestion at that time that any promise or inducement had been held out to him. Whilst I acknowledge the force of the submission that if a promise to not oppose bail was made, it is unlikely that an accused would feel free to refer to it when asked was any promise or inducement held out to him I do not accept in this case that the accused is a credible witness and that such an inducement was offered.

I am satisfied that the accused was not told that if he provided the police with ten names they would not oppose bail. Accordingly there is no basis for finding that the confession should be excluded pursuant to section 10 of the Criminal Law Amendment Act or as

involuntarily at common law.

As I am satisfied that there was no conversation in the police car about bail as alleged by the accused when travelling from the phone box to Acacia Ridge police station, and as I am not satisfied that there was any discussion about the Canadian currency at the phone box, the failure to record any conversation prior to the drive-around does not give rise to any grounds on which I should exercise my discretion and exclude the confession.

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