R v Mostyn and Mostyn

[1996] QCA 91

IN THE COURT OF APPEAL	[1996] QCA 091
SUPREME COURT OF QUEENSLAND

C.A. No. 482 of 1995. C.A. No. 491 of 1995.

Brisbane

[R v. Mostyn]

T H E Q U E E N

v.

SHANE MOSTYN and
DANNY STANLEY MOSTYN

Appellants

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McPherson J.A.
Davies J.A.

Pincus J.A.

___________________________________________________________________

Judgment delivered 10/04/1996

Joint reasons for judgment of Pincus J.A. and Davies J.A.; separate concurring reasons
for judgment of McPherson J.A.

___________________________________________________________________

APPEALS DISMISSED

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CATCHWORDS: CONFESSIONS - involuntary confessions exclusion -
confessions excluded on grounds of unfairness - use of arrest
on minor offence to detain for questioning on a major crime -
recording of police interviews.

Hallam and Karger (1985) 18 A.Crim.R. 221

Cornwall (Court of appeal, unreported, 23/11/1993)

Lucas Report 1977, para. [26]

Counsel:	Mr J Callinan for the appellant Shane Mostyn. Mr T Glynn for the appellant Danny Stanley Mostyn. Mr B Butler for the respondent.
Solicitors:	Legal Aid Office for the appellants. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	01/03/1996.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 10th day of April 1996

I have had the advantage of reading the joint reasons prepared by Pincus and Davies JJ.A. on this appeal. I agree with them.

The practice of electronically recording, and in most cases video-taping, police interviews with suspects who are later charged with offences on the strength, wholly or partly, of what has been recorded, has proved salutary. Reducing the opportunity and the occasion for making complaints, whether justified or ill-founded, that confessions have been fabricated or improperly obtained, has had beneficial effects in several different ways. It has tended to improve both the discipline and the morale of the police force. It has enhanced the process of administering justice in court not only by promoting greater confidence in verdicts, but also by avoiding or at least greatly diminishing the time-consuming operation of testing the validity of much confessional evidence tendered at trials. If some cause for concern remains, it is now largely confined to the fact that much time continues to be occupied at trial in replaying the whole of often very lengthy taped interviews, when only a few passages are relevant to matters in issue.

As frequently happens when an improvement is introduced, a corresponding effort to subvert or defeat it is soon devised. A method that may now be coming into vogue is for a dishonest suspect to claim that he was induced to participate in a recorded interview by some earlier and unrecorded promise or threat from police or other person in authority. The present case may be an instance of that kind. Judging by their criminal records in New South Wales, the applicants are not without experience of police procedures. Or it may be that this is an occasion on which some such threat or promise was in fact made. If so, the truth of the matter cannot readily be gauged from the otherwise uncorroborated oral evidence of another conversation recorded, perhaps inaccurately, only in a police notebook some hours after the conversation took place. It threatens a reversion to the state of affairs that prevailed before recording of interviews was introduced, making it difficult to know where the truth really lies.

There may not be much that police can do to anticipate allegations of that kind if they are unfounded. Recording every moment during which a suspect is in their presence appears at first sight not to be a practicable measure to adopt. It would not necessarily prevent some such allegation from being made at a later date. It is, however, plain that the opportunity for such allegations would be greatly diminished if the precaution is taken of recording, even if only on a hand-held audio tape, every conversation which takes place between police and suspect prior to the formal interview. The objection that such a procedure may discourage a suspect from participating in an interview is not one that carries any weight in a court of law.

In the present case the trial judge was persuaded on the voir dire to accept the evidence of the police witnesses concerning the content of a conversation with the applicant Shane Mostyn that was not electronically recorded. His Honour did so despite some of the apparent weaknesses in the notebook record. The onus lay on the prosecution to prove, on a balance of probabilities, that the evidence of the relevant police witnesses was true. Sitting as we do on appeal, without having seen or heard the evidence being given, we are, compared with the trial judge, naturally at a disadvantage in reviewing a credibility finding like that. It has not been shown that, in arriving at it, his Honour misapprehended either his duty or the evidence before him, or that he made any demonstrable error that would vitiate his findings. Some positive assurance that, in the end, the verdicts of guilty were correct exists in the circumstance that the shot fired at the TAB office was proved to have come from the rifle later located in the bedroom occupied by the applicant Shane Mostyn. The evidence to that effect appears not to have been in dispute at the trial.

On this and the other matters raised on appeal, I agree, as I have said, with the reasons of Pincus and Davies JJ.A. The appeals should be dismissed.

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND DAVIES J.A.

Judgment delivered 10/04/1996

The appellants, having been convicted of 5 counts of armed robbery, appeal against their convictions. The grounds of appeal pressed were that confessional evidence should have been excluded by the judge as not being shown to be voluntary, and also, as to Shane Mostyn only, that the judge should have excluded confessional evidence on the ground of unfairness. The allegations of robbery all arose out of a visit by two disguised men, one armed with a rifle, to a TAB agency. A staff member and four customers were robbed, and a shot was fired by one of the robbers; the question in the case was whether the Crown had shown that the two appellants were the robbers.

Apart from confessions, the only substantial evidence against either appellant was that a rifle was discovered, about a month after the robbery, in a bedroom occupied by Shane Mostyn. There was evidence that the shot fired during the robbery at the TAB had been discharged from that rifle.

Voluntariness of Confessions

Each of the appellants admitted participation in the robberies and those admissions were recorded on video. The appellant Shane Mostyn’s appeal is based on the submission that the judge should not have been satisfied of the untruth of evidence which Shane gave on a voir dire, namely that the police told him that if he did not co- operate his girlfriend would be charged with "drug offences or something". As to unfairness, the argument for Shane is based on a number of complaints about the police mode of investigation, which it was said was unfair. Danny Mostyn’s appeal is, as argued, based solely on the proposition that the judge should not have been satisfied of the untruth of certain evidence which he gave on a voir dire, namely that the police threatened to charge his wife in relation to a bag of white powder and that this caused him to confess.

The allegations relating to voluntariness were denied by prosecution witnesses and the primary judge found that neither of the appellants confessed because of any impropriety, unfairness or other unlawful conduct. The judge having been positively satisfied of the untruth of the appellants’ allegations with respect to voluntariness, it appears to be a difficult task to induce this Court to adopt a contrary opinion. In support of the contention that the judge should have found that the threats we have mentioned were made, counsel for Shane advanced a number of criticisms of the prosecution evidence on this point. It appears to be necessary to deal only with the more substantial of them.

1. It was argued that the heading of the notes on which were recorded events

relating to the investigation of the robbery is suspect. The relevant part of the police
notes begins:

"Mon 13/6/94 8-4

Notes pertaining to Investigation of Kingston TAB & arrest of:-
1. Shane Mostyn &
2. Danny Stanley Mostyn"

The notes do not set out the time at which they were begun, but their maker, Mr Skillen, gave evidence that they were made about 2 a.m. on the morning of 14 June 1994. The heading, it will be noted, includes the date "Mon 13/6/94". Mr Skillen gave evidence to the effect that the reference in the heading of the notes to the arrest of Danny Stanley Mostyn was a mistake; when the notes were made, he said, he had not even spoken to Danny. In this evidence Mr Skillen was supported by Mr McPhee who worked with him. Nevertheless the error, as it was alleged to be, seems a very odd one. One would hardly expect that Mr Skillen would write down, at a time when he had not spoken to Danny, that the notes related to the arrest of that person and the suspicion that the notes were written after Danny was arrested can hardly be suppressed. The only other possibility that could rationally be entertained is that when the making of the notes began it had been decided that Danny would be arrested.

Of course, rebuttal of the inference which one would otherwise tend to draw from the heading of the notes - that they were made at a time when Danny had been arrested - would be easier if the maker of the notes had adopted the obvious course of noting the date on which and time at which they were begun.

The primary judge discussed this criticism of the police case in a way of which the appellants do not complain, other than to point out that his Honour did not specifically decide the point raised: were the notes made at the time sworn to by the police?

2. Messrs Skillen and McPhee said that Shane told them that he had "done some time" in New South Wales, in response to a question about his criminal history; McPhee did so by swearing to the content of Skillen’s note book. Although it was said that the watch-house keeper was told about that, there is no notation of it in the watch-house charge book as there should have been; the watch-house keeper was not called. The primary judge referred to these facts but drew no specific conclusion from them.

3. The next criticism of the police evidence which we think it necessary to mention is the failure of the investigating police properly to record their conversations with the suspects. It is absurd, in our view, that one still finds that police have conducted interviews with suspects in relation to major crime, attempting to obtain confessions, without the attempt being electronically recorded. As the primary judge pointed out, the criticism of this practice is "well documented". It is our view that attempting to obtain unrecorded oral confessions still appears to be so common that the fact that a particular police officer has done so can hardly be regarded as affecting his credit; but the question of recording is further discussed below, when dealing with the issue of unfairness.

Another aspect of this complaint is that, according to the argument of counsel for Shane, the primary judge should have treated the fact that the unrecorded conversations were not, nor was any part of them, reiterated when recording began. Again, we do not regard this as significantly affecting the credit of the relevant police officers.

4. After the recorded interview in which, as we have said, admissions were

obtained, Shane was asked whether any threat, promise or inducement had been held
out to him and in response he mentioned his girlfriend and added:

"She wasn’t even there at the time. We’d separated. I started hitting the
piss pretty bad and that’s when it happened".

There was another question asked which concluded:

"I gather your answer is that your girlfriend had no - nothing to do with it
and had no knowledge of it. Is that what you are saying?"

Shane answered "yes" to that, and in response to a further question on the same subject said:

"Well, not that it really makes a difference, but I was told that if I

co-operated that my girlfriend would be left alone".

To that, the questioner, a Mr Condon, replied in part:

"Well, that’s a matter that will be discussed or determined down the track.
You indicated that your girlfriend had nothing to do with it..."

The argument was that, apart from the fact that it showed that Shane had made an early complaint about an inducement to co-operate, the response to that complaint was odd if Mr Condon had had no previous knowledge that there had been such an inducement or that the making of such an inducement had been alleged.

In our opinion the point made has substance, but has not in itself sufficient strength to falsify the police version of events. Again, the difficulty arising from there having been no proper recording of the earlier conversation is evident.

5. Reference has already been made to the absence of any writing, in the note book, of the time at which or even the date on which the notes were made. Another deficiency in the notes which has become significant is that they do not set out the times of important events - e.g. execution of a search warrant, arrival at the CIB, arrest. It is the last omission which has presumably led to a curious discrepancy to be found in the evidence of Mr Skillen. He was asked by counsel what time Shane Mostyn was arrested and he said it was between 10 and 10.30, meaning 10 and 10.30 p.m. After further cross-examination he suggested that the arrest in fact took place shortly after 7 pm.

Conclusion on Voluntariness

There were, as we have mentioned above, a number of other complaints about the police evidence, but we have dealt with those which seem to us to have the most weight. While he was critical of the conduct of the investigation, the primary judge plainly preferred the police account of events to that given by the appellants. Danny was described by the judge as a "most unimpressive" witness and "most untruthful", and his Honour said that he unhesitatingly rejected Shane’s evidence. The appellants also relied below on evidence given by Alicia Smelscher, Shane’s girlfriend, but the judge rejected her evidence too.

When there is evidence throwing doubt upon the voluntariness of a confession, the onus is on the Crown affirmatively to prove that the confession was voluntary. What the submission for the appellants on this topic amounts to is that there were grounds on which the primary judge might have entertained substantial doubts about the truthfulness of the police. Assuming there were such grounds, then it does not logically follow that the judge’s preference for the police evidence over that adduced against it must be held to have been an error. The trial judge had to assess the strength of one body of evidence against that of another body of evidence. Having done so, he was amply satisfied that the confessions were made voluntarily and there is no sound basis upon which that conclusion could be held to have been wrong. It was not, nor could it sensibly have been, submitted that the weaknesses in the prosecution case on the question of voluntariness were of such magnitude as to make it clear that the confessions were involuntary, or positively to require acceptance of the appellants’ allegations.

Fairness

This ground is pursued only on behalf of Shane. He was initially arrested on a charge of possession of an unlicensed firearm and Skillen admitted that he regarded himself as entitled to use as an investigative tactic the arrest of a person on a lesser charge while investigations in relation to a more serious charge were carried out. That is what happened here; on Skillen’s (second) version as to the time of arrest on the firearms charge, namely that it was about 7 p.m. on 13 June 1994, the appellant remained at the police station for some hours until he was taken to the watch-house. The next day Shane was questioned at the watch-house, that questioning being unrecorded, although its purpose was to obtain admissions that Shane was involved in the robberies, and subsequently a recording was made of confessions. The substantial points which are to be considered are the use of the arrest on the minor charge to enable investigation of the robberies and the failure to record conversations in which incriminating statements were being sought.

As to the first point, the arrest for a minor offence, that subject is discussed by King C.J. in Hallam and Karger (1985) 18 A.Crim.R. 221, an authority which was distinguished in Cornwall (Court of Appeal, unreported, 23/11/1993). In Hallam and Karger, King C.J. said at p. 229:

"There is no impropriety in arresting a person who is suspected of a grave crime, on some lesser charge, if that arrest is for the genuine purpose of apprehending him for the lesser crime and is not in reality for the ulterior purpose of getting him into custody for interrogation with respect to the grave crime".

In Cornwall the appellant was arrested for the offence, rather trivial on the face of it, of unlawfully being in an enclosed yard; yet questioning of Cornwall, while he was under arrest, about an armed robbery was not held to constitute such unfairness as to require rejection of a confession obtained in that way. The minor offence here was one of greater significance; the rifle was in a concealed position in two wrapped pieces and the police plainly had in mind the possibility that it had recently been used for the commission of a robbery. One could hardly contend that the arrest on that charge was improper; nor is it made improper by the circumstance that the police intended to, and did, question the arrested person about robberies which they thought could well have been committed using the rifle in question.

But that should not be considered in isolation, for there is the additional circumstance that substantial conversations with the arrested person were had and were not properly recorded. This has led to the dispute discussed above, with respect to voluntariness. It is true, as was pointed out by counsel for the respondent, that even if it were the practice to tape-record conversations with suspected persons, the police could still make an unrecorded threat; but it is plain from the experience which has been gained, from the extensive use of tape recording in recent years, that the practice diminishes the frequency of allegations of improper conduct on the part of the investigating police. No doubt such conduct still sometimes occurs, according to anecdotal evidence, but it must be kept in mind that things appear to have greatly improved. Once it was possible for an inquiry headed by a Supreme Court judge, and including a retired senior police officer, to conclude that "the sad truth is that ‘verballing’, as it has become known, is a device that is not uncommonly employed by certain members of the police" (Lucas Report, 1977, para. 26). The report made by Fitzgerald Q.C., now the President of this Court, in 1989, noted that:

"The verbal ‘confession’ has long been a feature of Queensland criminal trials, with modifications and refinements over the last quarter of a century in order to boost its flagging appeal . . . ".

These deficiencies in the administration of justice have not, however, entirely been remedied; the practice of questioning suspects, even those strongly suspected of having committed major crimes, in an endeavour to obtain confessions which are completely unrecorded other than by what professes to be an account written down from recollection, some time later, is regrettably still prevalent. It presents dangers not only to police who, under that system, are much more likely to be subjected to accusations of impropriety, true or otherwise, but to suspects and accused persons. Here there would have been no difficulty about recording the relevant conversations. Recorders were available, as they always should be, but were not used.

But it is our view that the combination of the bad practice of seeking unrecorded oral confessions, with the circumstance that Shane was questioned while in custody in relation to another matter, does not suffice to require the exclusion of the confessions made. An important reason for this conclusion is that, according to the trial judge, Danny appeared when confessing on video to be "cheeky, aggressive, half-smart, arrogant . . . cagey . . . relaxed . . .", epithets whose accuracy was not challenged by counsel before us. There is not the slightest reason to think that when he confessed on video Danny’s will was overborne, that he was frightened, or otherwise not in such a condition as to make a confession which could be relied on.

The appeals are dismissed.