R v Small (No.2)

[2009] QDC 320

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Small (No.2) [2009] QDC 320

PARTIES:

R

V

JUSTIN GARY SMALL

FILE NO/S:

Indictment No. 1918 of 2009

DIVISION:

Criminal

PROCEEDING:

Directions hearing

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

29 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1-3 September 2009

JUDGE:

Irwin DCJ

ORDER:

The record of interview by Constable Bakker and Sergeant Harrigan with the accused from 11.45 am on 5 February 2009 is admitted in evidence, subject to the exclusion of the passages identified in paragraph [286] of the decision.

CATCHWORDS:

CRIMINAL LAW – Evidence – admissibility – confessions and admissions – whether statements made by accused during an interview with police officers involuntary – where the statements were made by accused following police non‑compliance with statutory requirements – discretion to exclude – unfairness discretion – public policy – probative value weighed against prejudicial effect

Criminal Code (Qld), s 590AA(2)(e)

Criminal Law Amendment Act 1894, s 10

Evidence Act 1977, s 130

Police Powers and Responsibilities Act 2000, s 4(e), s 216, s 415,s 416, s 431

Schedule 10 (Responsibilities Code), s 33, s 37

Bunning v Cross (1978) 52 ALJR 561; 43 ALR 619

Clelland v The Queen (1982) 151 CLR 1

EM v The Queen (2007) 232 CLR 67

McDermott v The King (1948) CLR 501

Pollard v The Queen (1992) 176 CLR 177

Reg v Ireland (1970) 126 CLR 321

R v Brauer [1937] QWN 18

R v Kallis (1994) 2 Qd R 88

R v Lee (1950) 82 CLR 133

R v Soma (2003) 196 ALR 421, 77 ALJR 849, cited

The Queen v Swaffield (1998) 192 CLR 159

Tofilau v The Queen (2007) 231 CLR 396, cited

Van der Meer v The Queen (1988) 62 ALJR 656, cited

COUNSEL:

M.R. Byrne for the Crown

A.C. Smith for the defendant

SOLICITORS:

Director of Public Prosecutions (Queensland) for the Crown

Richard Gray and Associates for the defendant

Issues

1. This is an application pursuant to s 590AA(2)(e) of the Criminal Code (Qld) to exclude as involuntary so much of the record of interview with the accused as the court may determine. Alternatively, that so much of the interview be excluded as unfair, pursuant to the discretion under s 130 of the Evidence Act 1977 (EA).

1. This application was heard after I had exercised my discretion under s 60(1) of the Jury Act 1995 to discharge a jury which had been sworn to give a verdict in respect of the charges against the accused.

1. The accused is charged with three offences which are each alleged to have occurred on 27 January 2009:

·     unlawful assault on H occasioning her bodily harm whilst armed with an offensive weapon.

·     unlawfully and indecently assaulting Y (sexual assault).

·     wilfully and unlawfully damaging a motor vehicle.

1. After pleading guilty to the offence of wilful damage and not guilty to the other offences in the presence of the panel from which the jury was subsequently empanelled, I exercised my discretion to direct the entry of a plea of not guilty on this offence.  The appellant was then re-arraigned and entered this plea.  It was in these circumstances that I discharged the jury and proceeded to hear the present application by agreement.

1. Mr Smith, who appears as counsel for the accused, expresses the basis of the application as follows:

·     the primary submission is that the entire interview should be excluded as involuntary.

·     the secondary submission is that all of the interview after page 26 of the transcript should be excluded as involuntary.

·     the third submission is that if I do not exclude all or part of the interview as involuntary, I exclude parts of it in the exercise of my discretion.

Crown case

1. To place this application in context on the basis of the depositions, the Crown case is that the two female complainants met the accused in the early hours of 26 January 2009 and he accepted an invitation to travel with them to H’s home.

1. Later at the house he and H had consensual sex for a few minutes before she told him to stop.  He did so and walked out of her room.

1. He then walked naked into another bedroom in which Y was sleeping and lay on top of her over the top of the sheets.  He was holding her arms to the side.  He suggested that they have sex.  She told him to get off.  He did so.  This was the basis of the sexual assault charge.

1. He returned to H’s room and lay on top of her.  She again told him to get off.  He then verbally abused her and began to stand up.  She told him to get out of her house.  He kept swearing at her.  She felt threatened and that her safety was in danger.  She grabbed a piece of wood which she kept next to her bed for protection and again told him to leave.  The piece of wood which has been appropriately described as a pick handle became an exhibit.

1. He walked towards the door yelling abuse as he left.  H followed him, armed with the piece of wood.  She alleges that when he got to the front gate he turned aggressively towards her, and without saying anything grabbed the piece of wood with both hands.  He pulled it away from her, causing her to fall over.  This was the basis of the assault charge.

1. As she attempted to run back inside he began hitting her with the piece of wood.  He struck her about six times with it to the right thigh and both legs, causing pain and swelling, with bruises and welts.

1. She saw him walk over to her car and smash the driver’s side window with the wood, before dropping it and running away.  This was the basis of the wilful damage charge.

1. Y heard the strikes on flesh and breaking glass.  She did not witness these incidents.  Shortly afterwards she found H lying on the road.

1. Constable Bakker and Sergeant Harrigan arrived at H’s home at approximately 5.30 pm.  They observed the broken driver’s side window.  They also took possession of the piece of wood which Constable Bakker estimated as being approximately 70 cm long.

1. After being advised that a fingerprint match had been obtained from drinking glasses at H’s home, Constable Bakker contacted the accused by phone on 5 February 2009.  He attended the Dutton Park police station that morning, and participated in a video‑recorded record of interview for approximately two hours, from 11.45 am.  It is this interview which is the subject of the present application.

1. It is accepted by the parties that there is no issue that, consistent with what the accused said during the interview, he was the man in the house at the relevant time.[1]

   [1]T 2-26 ll 28-29.

1. The accused said that he commenced to leave the house when H told him to.  She followed him into the street and hit him on a number of occasions with what he described as a bat or a baseball bat.  He said he was able to take this off her and hit her twice on the legs; and was defending himself against her.

1. In relation to the incident involving Y, he said that H had told him to go into her bedroom after they had completed their act of sexual intercourse. He went into the room and lay on the bed beside her.  He said that he placed an arm over her and said words to the effect that H had sent him into her bedroom.  She replied that she was not interested in any sexual activity.  He got up and returned to H’s room, after which the events occurred which led him to leave the house.

1. He denied touching the car and said there was no damage to it when he left.  He said that he threw what he described as the bat at H who was on the ground as he left.  He said it hit the cement or bitumen.

1. Mr Byrne, who appears for the Crown, seeks to tender the record of interview as part of the prosecution case.  He submits that the relevance of the interview is:

·     It can amount to an admission of Count 1 (the assault charge on H) if the jury were to take the view that what the appellant said he did in relation to H was an excessive use of force in the circumstances.

·     It goes to an admission to Count 2 (the sexual assault on Y), although not in the manner particularised in that he admits to entering the bedroom of a woman whom he had met an hour or so earlier whilst he is naked and effectively cuddling next to her with a view to engaging in sexual intercourse, at a time when she was at best half asleep, if not asleep.

·     It puts him at the time and place in possession of the wooden implement consistent with the proposed evidence of H; and shortly afterwards the police see injuries that are consistent with being inflicted by this implement.

For the prosecution case to be put fully and fairly, the prosecution must adduce any admissible evidence of what the accused told the police in this interview about the accusations made against him.  To the extent that what the accused told the police during the interview is admissible and incriminating, the prosecution, if it wishes to rely on these statements, is bound to put them in evidence before the accused is called upon to decide the course he would follow at the trial.  To the extent that the incriminating statement contains exculpatory material, the prosecution is bound to take the good with the bad and put it all before the jury.[2]

[2]R v Soma (2003) 196 ALR 421; 77 ALJR 849, per Gleeson CJ, Gummow, Kirby and Hayne JJ at [31].

1. Following the interview, the accused left the police station and was advised he would be contacted subsequently.

1. On 18 February 2009 he attended the police station as requested and was issued with a Notice to Appear for assault occasioning bodily harm, common assault and wilful damage.

1. A few days after he was charged he rang the police station and spoke to Constable Bakker.  Initially he advised that he wanted to make a counter‑complaint of assault against H.  She advised him to attend the station.  However, when he subsequently attended the station, he told Constable Bakker that he did not wish to make such a complaint until he obtained a copy of H’s statement.

1. A few days later he again called and spoke to Constable Bakker.  He said that he had spoken to his solicitor and that perhaps the “aluminium” baseball bat could have bounced from the bitumen when he threw it down and bounced back up to smash the car window.  He further started talking about possible defences.  The constable told him that these were questions that he should speak to his solicitor about, and that it was not appropriate for her to talk to him about these matters.

Legal Issues

Voluntariness of the interview

1. The statutory basis for the inadmissibility of a confession is to be found in s 10 of the Criminal Law Amendment Act 1894, which provides:

“No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

As Mr Byrne observed, s 416 of the Police Powers and Responsibilities Act 2000 (PPRA) neither adds to nor detracts from this.[3]

[3]Section 416 provides:

“A police officer who is questioning a relevant person must not obtain a confession by threat or promise.”

1. The principles for the admission or exclusion of confessional evidence are well known.  In essence, as submitted by Mr Byrne, the material is inadmissible unless the Crown can show, on the balance of probabilities, that the confession was made in the exercise of a free choice to speak or to remain silent.[4]  This principle has recently been endorsed by Gummow and Hayne JJ in Tofilau v The Queen,[5] where their Honours said:

“The statements which the appellant made were not made under compulsion.  Nothing that was said to or done with him constituted compulsion of a kind that would meet the criterion that what was said was not said voluntarily.  There was no duress or intimidation.  There was no importunity, insistence or pressure of a kind exerted by the person to whom the confession was made that would found the conclusion that the appellant had no free choice whether to speak or stay silent.  The evidence of what he had said was rightly admitted at his trial.”[6] (my emphasis)

[4]Clelland v The Queen (1982) 151 CLR 1 at 5.

[5](2007) 231 CLR 396 at [98].

[6]See also Van der Meer v The Queen (1988) 62 ALJR 656, 660, 665.

Exclusion of the interview as an exercise of discretion

1. As indicated it is argued that I exclude parts of the record of interview as unfair under s 130 of the EA which provides:

“Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”

1. The legislative provisions on which this argument is based are to be found in the PPRA and the Responsibilities Code (RC) which is Schedule 10 to that Act.  These provisions relate to the cautioning of persons.

1. Section 415(1) of the PPRA provides that Part 3 “applies to a person (relevant person) if the person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence.” The exclusionary provisions of s 415(2) do not apply in the circumstances of this case.

1. Part 3 includes s 431(1) which states:

“A police officer must, before a relevant person is questioned, caution the person in a way required under the Responsibilities Code.”

The circumstances in which this section does not apply do not exist in the present case.

1. Division 1 of Part 5 of the RC applies to the questioning of relevant persons about indictable offences as in the present case.  It is argued that the investigating officers failed to comply with ss 33 and 37 of the RC.

1. Section 33 is as follows:

“33  Asking persons to attend for questioning

(1)  This section applies if a police officer wants to question a person as a suspect, other than a person mentioned in the Act, section 398.

(2)  If the police officer approaches the person when not at a police station or police establishment, the police officer must caution the person in a way substantially complying with the following—

‘I am (name and rank) of (name of police station or police establishment).

I wish to question you about (briefly describe offence).

Are you prepared to come with me to (place of questioning)?

Do you understand that you are not under arrest and you do not have to come with me?’.

(3)  If the person, while not in the company of a police officer, attends a police station or police establishment for questioning, the caution must substantially comply with the following—

‘I am (name and rank) of (name of police station or police establishment).

I wish to question you about (briefly describe offence).

Did you come here of your own free will?’.

(4)  Before the police officer starts to question the person, the police officer must caution the person in a way substantially complying with the following—

‘Do you understand you are not under arrest?

Do you understand you are free to leave at any time unless you are arrested?’.

… .” (my emphasis)

Section 398 of the PPRA does not apply to this case.

1. Insofar as is relevant, s 37 provides:

“37  Cautioning relevant persons about the right to silence

(1)  A police officer must caution a relevant person about the person’s right to silence in a way substantially complying with the following—

‘Before I ask you any questions I must tell you that you have the right to remain silent.

This means you do not have to say anything, answer any question or make any statement unless you wish to do so.

However, if you do say something or make a statement, it may later be used as evidence.

Do you understand?’.” (my emphasis)

1. In R v Pollard[7] Brennan, Dawson and Gaudron JJ, said with reference to a confession or admission:[8]

“Even if it was voluntary, the trial judge has a discretion to exclude it if it would be unfair to the accused to admit it.  In addition, the trial judge has a separate discretion to exclude, on the grounds of public policy, evidence which has been improperly or illegally obtained.”

[7](1992) 176 CLR 177.

[8]Ibid at 196 with reference to R v Lee (1950) 82 CLR 133; Bunning v Cross (1978) 52 ALJR 561; and Clelland. See also Deane J at 200-201.

1. Their Honours noted that since Clelland it must be accepted that the discretion to exclude illegally or improperly obtained evidence does extend to confessional evidence, although in practice its application is likely to be infrequent.[9]

   [9]Ibid at 196-197; and 201.

1. In Pollard, Dean J said:[10]

“The considerations relevant to the two discretions overlap; the unlawfulness of the police conduct will be relevant to the question of unfairness to the accused and since it is the policy of the law that a criminal trial be fair, considerations of actual or possible unfairness to the accused are likely to be relevant to the question of public policy.

…

Nonetheless, the two discretions are distinct and independent.”

[10]Ibid at 201.

1. In R v Swaffield,[11] Toohey, Gaudron and Gummow JJ identified a fourth basis for the rejection of a statement of an accused person which was to be discerned from decisions of the High Court of Australia.  This fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value.[12]

   [11](1998) 192 CLR 159.

   [12]Ibid at 189 at [52].

1. In relation to the discretionary exclusion on the grounds that it would be unfair to the accused to admit the statement, their Honours said at 189 [53] that this requires an evaluation of all relevant circumstances, and quoting Van der Meer:[13]

“The question is not whether the police have acted unfairly; the question is whether it would be unfair to use his statement against him. … Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.”  (my emphasis)

[13](1988) 62 ALJR 656 per Wilson, Dawson and Toohey JJ at 662. See also EM v The Queen (2007) CLR 67 per Gummow and Hayne JJ at 103, [107]; and Kirby J at 125-126, [191] where his Honour also said:

“… and whilst unreliability of an admission might be a ‘touchstone of unfairness’, it is ‘not to be the sole touchstone’.  It might be ‘that no confession might have been made at all, had the police investigation been properly conducted’.”

1. In Swaffield their Honours also said:

“… the Chief Justice asked counsel to consider whether it would be a better approach to think of admissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards.

…

Subject to one matter, an analysis of recent cases, together with an understanding of the purposes served by the fairness and policy discretions and the rationale for the inadmissibility of non-voluntary confessions, support the view that the approach suggested by the Chief Justice in argument already inheres in the common law and should now be recognised as the approach to be adopted when questions arise as to the admission or rejection of confessional material.  The qualification is that the decided cases also reveal that one aspect of the fairness discretion is to protect against forensic disadvantages occasioned by the admission of confessional statements improperly obtained.” (my emphasis)

1. In relation to exclusion on the grounds of public policy, Mr Byrne referred me to Bunning v Cross[14] where with references to Reg. v Ireland,[15] their Honours said:[16]

“What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy; thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task is to enforce the law.  This being the aim of the discretionary process called for by Ireland, it follows that it by no means takes as its central point the question of unfairness to the accused.  It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor, while if present, will play its part in the whole process of consideration.”

[14](1978) 52 ALJR 561.

[15](1970) 126 CLR 321.

[16](1978) 52 ALJR 561 at 569.

1. In concluding that the balance of considerations in that case came down to the admission of the evidence, their Honours said:[17]

   [17]Ibid at 570-571.

“The first material fact in the present case, once the unlawfulness … is noted, is that there is here no suggestion that the unlawfulness was other than the result of a mistaken belief on the part of police officers … entitled them to do what they did. … Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it.

The second matter to be noted is that the nature of the illegality does not in this case affect the cogency of the evidence so obtained … cogency should generally be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentionally reckless.

…

Where, as here, the illegality arises only from mistake and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had.  It bears on one of the competing policy considerations, the desirability of bringing wrongdoers to conviction.  If other equally cogent evidence, untainted by illegality, is available to the prosecution at the trial the case for the admission of the evidence illegally obtained will be the weaker.

…

A third consideration may in some cases arise, namely the ease with which the law might have been complied with in procuring the evidence in question.

…

A fourth and important factor is the nature of the offence charged.

…

Some examination of the comparative seriousness of the offence and the unlawful conduct of the law enforcement’s authority is an element of the process required by Ireland’s case.

…

Finally, it is no doubt a consideration that an examination of the legislation suggests that there was a quite deliberate intent on the part of the legislature to narrowly restrict the police in their power. … This last factor is, of course, one favouring rejection of the evidence.” (my emphasis)

1. In Pollard Deane, Dawson and Gaudron JJ said:[18]

“In a case where it is established that a confession or admission by an accused was made voluntarily but the evidence warrants further consideration of whether it ought to be admitted, it will often be a convenient course for the trial judge to ask first whether it would be unfair to the accused to use the confession or admission against him before considering, if the evidence warrants it, whether it should be excluded on the ground that it was illegally or improperly obtained.  If the first question is answered in the affirmative, it will be unnecessary to proceed to the second question.”

[18](1992) 176 CLR 177 at 197.

1. In that case, Deane J summarised the position as follows:[19]

   [19]Ibid at 203-205.

“Ultimately, the question whether evidence of an incriminating statement procured by unlawful conduct on the part of investigating police should be excluded on grounds of public policy must be resolved by a balancing process.

In that balancing of policy considerations, the relevance and importance of fairness to the particular accused will depend on all the circumstances of the particular case.

In a case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime.  In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case.  The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement.  The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to the other factors of which the most important will ordinarily be the nature and seriousness of the unlawful conduct engaged in by the law enforcement officers.  At one extreme are cases in which what is involved is an ‘isolated and merely accidental non-compliance’ with the law or some applicable judicially recognised standard of propriety.

In such cases, particularly if the offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds.  The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused.  At the opposite extreme are the cases where the incriminating statement has been procured by a course of conduct on the part of law enforcement officers which involved deliberate or reckless breach of a statutory obligation imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice.  Such cases manifest ‘the real evil’ at which the discretion to exclude unlawfully obtained evidence is directed. … In such cases the principal considerations of public policy favouring exclusion are at the strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence.

…

In such cases, it is, no doubt, convenient first to decide the question of unfairness and proceed to address the question of public policy only if the question of unfairness is answered advisedly to the accused.  Nonetheless, in a case involving deliberate or reckless disregard of a law expressly directed to regulating police conduct in relation to the questioning of a suspect, it may be convenient to go directly to the question of exclusion on the grounds of public policy.” (my emphasis)

It is for the accused to satisfy me that I should exercise my discretion to exclude all or part of the interview.

Evidence

1. Constable Bakker, Sergeant Harrigan and the accused gave evidence in respect of the issues relevant to the application.

Constable Bakker’s evidence

Evidence-in-chief [20]

[20]T 2-31 to 2‑41.

1. On 28 January Constable Bakker received information from the Fingerprint Bureau as a result of which she rang the accused on 5 February 2009, probably at 10.30 am.  She made no notes of this conversation.

1. She introduced herself as Constable Jo Bakker from Dutton Park police station and confirmed his identity and then said “I need to speak to you in relation to an incident that occurred on Australia Day morning.”

He responded with words to the effect of, “Is that with the two women?”  She replied, “Yes.”

1. He asked if he had to come in at a certain time.  She replied that she was calling to arrange a time that might suit him to which he said, “Ok.”

1. She believed he asked her in effect whether it was compulsory or mandatory for him to attend.  Her response was that it was not compulsory to attend, and she was simply asking him so that it was an arrangement convenient for both the police and himself.

1. She did mention to him, however, that on the police system as soon as someone is listed as a suspect, should he come to police attention or in contact with the police, they may speak to him about the matter if it was not arranged at that time.

1. She said he was very adamant that he was going back to the UK so he wanted to sort out any matter as quickly as possible.  He said he would come in as soon as possible and arrived within an hour or so.

1. When he arrived she advised him that certain rights and cautions would be administered during the interview that was to be conducted and he also had a right for a solicitor or friend to be present.  He responded that he did not want anyone present.  This conversation occurred in the room where the interview was conducted.  He did not complain about coming to the police station.

1. The interview was conducted by her and Sgt Harrigan for about two hours from 11.45 am.  Between the end of the interview and when he left the police station, he made no complaints about attending the station.

1. The DVD of the record of interview was tendered and played during her evidence.  I was provided with a transcript as an aid to understanding it.  For convenience, the subsequent submissions made on behalf of the Crown and the accused were based on the transcript which I consider was sufficiently accurate for this purpose.  Where it is relevant to refer to the content of the interview, I will do so by reference to the transcript.

1. Of relevance to the requirements under s 33(3) of the RC, Constable Bakker commenced the interview by identifying herself and Sergeant Harrigan by name, rank and police establishment.[21]

   [21]Transcript of police record of interview, p 2 ll 5-12.

1. She then gave the caution about the right to silence as required by s 37 of the RC.  The accused replied that he understood the warning.[22]

   [22]Ibid, pp 2 l 50 to 3 l 15.

1. She also informed the accused of his right to communicate with a friend, relative or lawyer in terms of s 34(1) of the RC.[23]  He responded that there was no one that he wished to speak to.

   [23]Ibid, p 3 ll 16-27.

1. With further relevance to s 33(3) of the RC, she then asked him whether he had come to the police station of his own free will.  He replied in the affirmative.[24]

   [24]Ibid, p 3 ll 34-36.

1. As required by s 33(4) of the RC she asked him if he understood that he was not under arrest and whether he understood that he was free to leave at any time unless he was arrested.  His reply was in the affirmative to each proposition.[25]

   [25]Ibid, p 3 ll 39-47.

1. The interview then proceeded as follows:[26]

   [26]Ibid, pp 3 l 49 to 4 l 18.

“CON BAKKER:        Yep.  Okay, was any threat, promise or inducement held out to you to take part in this interview?

SMALL:          No.

CON BAKKER:         Okay, do you understand what, what I mean by threat, promise or inducement?

SMALL:          Of being here?

CON BAKKER:         Yeah.

SMALL:          Um - -

CON BAKKER:         Can you just explain that to me?

SMALL:          Yes - -

CON BAKKER:         What, what threat, promise or inducement means to you?

SMALL:          Ah, a threat, as in you have to be here, um, a promise as in, ah, I promise, ah, you, you should be there.  Um, sorry [INDISTINCT] and the other one, not threat - -

CON BAKKER:         Inducement.

SMALL:          Inducement, um, you have to be there or we’re going to come and find you.”

1. The part of the interview relied on by the Crown to “briefly describe offence” as required by s 33(3) of the PRC is:[27]

   [27]Ibid, pp 6 l 47 to 7 l 44.

“CON BAKKER:        No worries.  Okay, um, as I mentioned to you briefly, earlier when you came in - -

SMALL:          Mmhmm.

CON BAKKER:         That the reason you’re here is in relation to an incident that happened on the, on Australia Day.  Yep, and you’re aware of what I’m talking about in relation to, ah, an alleged assault that occurred at that time, that you - -

SMALL:          Um.

CON BAKKER:         That when I asked you to come in - -

SMALL:          Yes.

CON BAKKER:         I told you that I needed to speak to you in relation to an incident to obtain your version of events on Australia Day.

SMALL:          On Australia Day.

SGT HARRIGAN:      Yeah, it was in the morning.

CON BAKKER:         The morning, oh, actu—, yeah, early in the morning, so it would have, you might have gone out on the twenty-fifth and then - -

SMALL:          Yeah.

CON BAKKER:         The morning of Australia Day.

SMALL:          The morning of Australia Day.

SGT HARRIGAN:      Yep.

CON BAKKER:         Yep.

SMALL:          Yep.

CON BAKKER:        Do you agree with that?

SMALL:         I do, I agree.

CON BAKKER:         Okay, do you agree that I didn’t ask you any questions in relation to what happened?

SMALL:          No, you didn’t ask me anything.

CON BAKKER:         Okay.

SMALL:          Mmhmm.

CON BAKKER:         right.  So, as I’m investigating that incident, what—, what I’m going to ask first is if you can tell me from your version, what actually happened on that day.” (my emphasis)

1. The accused then gave his version about what had happened, and was asked questions by both officers about what he had said.[28]  This version included going and seeing Y in the other room[29] and throwing the bat and running down the road away from H.[30]

   [28]Ibid, pp 8 l 1 – 26 l 14.

   [29]Ibid, p 8 ll 45-47.

   [30]Ibid, p 9 ll 8-9.

1. At p 26 l 16, Constable Bakker told him that she was going to introduce a statement made by H in relation to “this incident” which is “simply … her version of events”.  She said that she would read out a paragraph of H’s statement and “then whatever comment you wish to make about it, you may do so”.[31]

   [31]Ibid, p 26 ll 16-45.

1. As I have indicated, Mr Smith’s secondary submission is that all of the interview from this point should be excluded as involuntary.

1. From pp 26 l 1 to 55 l 18, Constable Bakker read paragraphs of H’s statement word for word.  The accused commented on the propositions contained in these paragraphs so as to give his version along the lines that I have already summarised, and was questioned about the information which he provided.  During the course of this explanation he spoke about going to Y’s room[32] and said that he threw the piece of wood that he described as a “baseball bat” down on to the roadway and left.[33]

   [32]Ibid, p 31 ll 5-8.

   [33]See, for example, Ibid p 39 ll 32-35; p 48 ll 25-46.

1. At p 48 ll 52-56 Constable Bakker read the paragraph of the statement concerning the allegation that he smashed the car window as follows:

“It says as I was lying on the ground, I saw him walk over to my car.  Without saying anything, he has smashed the driver’s side window with the piece of wood.  He has then dropped the piece of wood and started running down … .”

1. He responded:[34]

   [34]Ibid, p 49 ll 1-3.

“No.  I have, didn’t touch her car with the wood.  Um, after her hitting me and me throwing the wood on the ground, I turned around and ran.  That’s what I did.”

He said that there was no damage to the car when he left and he did not touch the car.[35]  In answer to further questions, he said:[36]

[35]Ibid, p 49 ll 5-20.

[36]Ibid, p 49 ll 24-54.

“The last thing I did was threw the wood back at her on the ground … and that’s when I turned around and by that time, I started to run down the road … [H] was ... sitting on the ground and I turned around, thrown it back at her and ran down the road.”

He added:[37]

[37]Ibid, p 51 ll 16-17.

“I’d literally threw it, like, at the ground.”

He said that:[38]

“It hit the road, and in that space, I, as soon as it left my hands, I turned around and I was down the road.”

[38]Ibid, p 52 ll 48-49.

1. This topic was concluded as follows:[39]

“CON BAKKER:        … But you don’t agree with, um, that you smashed the driver’s side window?

SMALL:          I never, I never, I didn’t.”

[39]Ibid, p 53 ll 38-41.

1. The complaint that he had assaulted Y was introduced for the first time about halfway through the 99‑page transcript at p 54 l 21 as follows:

“SGT HARRIGAN:     … also, there’s the complaint that [Y] was assaulted, okay.  And that’s what we’re gonna cover now in the next statement.

SMALL:         Jennifer was assaulted?

SGT HARRIGAN:      Mmm.

SMALL:         With what?

CON BAKKER:         Well, like, I’ll go through the statement, because it’s probably easier to explain it and then you can tell your version of events in relation to it, ‘cause it might be a bit easier to explain what’s happened there.

SMALL:          Right.

CON BAKKER:         and then, okay?  So if - -

SMALL:         I had absolutely nothing, I, I hadn’t touched [Y], I hadn’t even kissed [Y].  I hadn’t done anything to [Y] before her, I, in this whole night.” (my emphasis)

1. I had the advantage of observing the accused’s reaction on the DVD to being told of Y’s complaint.  My interpretation is that he was clearly not expecting this.  I would describe the reaction as consistent with surprise.

1. However, it can be seen that he immediately denied doing anything to Y.  He then commented on the propositions contained in the paragraphs of her statement, so as to give his version and was questioned about the information which she provided.

1. In summary, his explanation about the alleged incident in the bedroom that Y was occupying was:[40]

   [40]Ibid, pp 60 l 15 to 77 l 56.  On the basis of his explanation he would have been naked at this time.

·     He walked into her room and laid down on top of the covers next to her, thinking she was awake, and she must not have been very much asleep because she knew he was there.  He described her as half asleep-half awake.

·     He put his arm around her over the blanket in between her torso and waist.  She was still fully covered apart from her neck and head.  Although he thought she might have had an arm tucked up underneath.  If this was the case, his arm would have been touching part of her arm.

·     She asked him what he wanted and he said that H had sent him in[41] to see her.

[41]See also Ibid, p 8 l 45 where he said that after H had decided she had had enough of intercourse she told him “to go and see her friend in her other room”.

·     He might have mentioned a kiss.

·     Y said to go away.

·     He got up and went back into H’s room.

·     As he did so he said that she was better looking than H.  He thought that H had heard this, and this is why she asked him to leave directly after this.

·     He was in the room for probably approximately 10-30 seconds.  From her tone of voice he could tell she did not want anything to do with him.

1. During the course of his response he disagreed that:

·     he was on top of her[42]

[42]Ibid, p 68 l 31.

·     he was straddling her, holding her arms down to her side with his hands[43]

·     anything was forced[44]

·     he said “let’s fuck”.[45]

[43]Ibid, p 69 ll 6-20.

[44]Ibid, p 69 ll 30-31.

[45]Ibid, p 73 ll 7-15; p 76 ll 5-22.  Although he said at p 68 ll 51-52 that he said that H had said “to come and see her for intercourse” and at p 75 l 15 that there “could’ve been talk of sex”, he ultimately agreed at p 75 ll 52-53 that there was no mention of intercourse.

1. During the interview there was detailed questioning by both police officers to clarify where he was lying on the bed in relation to Y.  He drew a diagram which became an exhibit in the directions hearing, and there was further questioning by the police to clarify what this showed.  This included Constable Bakker drawing her own lines on the diagram.  This questioning was criticised by Mr Smith and relied on by him in support of his application.[46]

   [46]Ibid, the questioning about their positions on the bed is at pp 61 ll 39 to 67 ll 17; p 77 ll 15-32.

1. From p 77 l 58 the interview turned to that part of her statement concerning what happened after he left Y’s room, and from that point the officers asked questions about what had happened between him and H.  During the course of this, there was further reference to the damage to the car, as follows:[47]

   [47]Ibid, pp 88 l 58 to 89 l 8.

“CON BAKKER:        [with reference to Y’s statement] … then states, ‘I heard breaking glass.  I don’t know what it was.’

SMALL:          Um, uh, at that point I don’t know exactly what that was about.  All I did was threw the bat down at her, turn around and ran.

CON BAKKER:         Did you hear breaking glass at any stage?

SMALL:          No.”

1. The interview concluded as follows:[48]

   [48]Ibid, pp 98 ll 35 to 99 l 1.

“CON BAKKER:        Um, is everything you’ve told me in the interview the truth?

SMALL:          Yes.

CON BAKKER:         Yes.  Have you partaken in this interview of your own free will?

SMALL:          Yes.

CON BAKKER:         Has, have you been threatened t— by anyone to take part in this interview?

SMALL:          No.

CON BAKKER:         Was any promise made out to you in any of th—, to answer any of the questions?

SMALL:          No.

CON BAKKER:         Okay, um, were you warned before that you didn’t have to say anything, unless you wanted to?

SMALL:          Yes.”

1. On 18 February 2009 Constable Bakker phoned him and asked him if he was able to attend the station in relation to the matter.  He expressed no reluctance to attend.  Upon his arrival she issued a notice to appear in relation to offences of assault occasioning bodily harm while armed, common assault and wilful damage.  In addition he was processed including being fingerprinted and photographed.

1. He called the station a couple of times after this and spoke to her.  In one of these calls, which was a couple of days after being issued with the notice, he stated that perhaps the aluminium bat could have bounced from the roadway and smashed the car window.  He then stated that maybe he could use provocation as a defence.  She informed him that he should direct his inquiries to a solicitor.  He also stated that he intended to potentially make a counter complaint of assault against H.  She replied that if he wished to do so he was welcome to attend the station and speak to her.  A couple of days later he attended the police station and stated that he did not wish to make a counter‑complaint until his matter had gone through the court and he had received his statement.

Cross-examination

1. Constable Bakker agreed that she and Sergeant Harrigan were investigating the accused for three possible offences.[49]

   [49]T 2-44 ll 20-45.

1. She denied telling him during the telephone conversation that she wanted to ask him questions in relation to “an incident involving a bat”.[50]

   [50]T 2-43 l 45 to 2-45 l 30.  She also aid that she did not believe that she identified the street in which the incident was alleged to have occurred in addition to the suburb.

1. She agreed that she may have said, “Do you know what I am referring to?” and he replied, “Yes.”[51]

   [51]T 2-45 ll 32-37.

1. She denied telling him that he would “have to” come down to the Dutton Park police station as they would like to ask him some questions.[52]

   [52]T 2-46 ll 1-11.

1. She also denied saying that, “It would be less embarrassing if you come here rather than we pick you up at work.”[53]

   [53]T 2-46 ll 34-44.

1. She believed that he spoke about being at work and asked about what would happen if he did not come in.  He possibly said that he worked seven days a week but she did not recall him expressing any view that it was not convenient.[54]

   [54]T 2-47 ll 1-25.

1. She denied telling him that her preference was for him to come in to do the interview that day.  Her evidence about this was:[55]

“My preference was to sort the matter out as soon as possible, whether that was the day, the following day – or to make an arrangement … .  My preference was simply to make a time.  Usually when I call someone it doesn’t happen there and then, it’s usually made the week after or within, so at that time … I didn’t have a thought that an interview was going to be conducted that day because usually that wouldn’t happen.”

[55]T 2-47 ll 19-30.

1. She denied saying that, “If you can’t come here we will have to pick you up at work.”[56]  In the context of denying that she also said that this “would be embarrassing”, she said:[57]

“What I said to him is right now he’s listed as a suspect on this matter so if he was unable to attend that eventually if he came into police contact that he would be picked up in relation to the matter, therefore it may save time and hassle, in relation to work or anything else, that if we arrange a time appropriate for himself and us to arrange for that to happen.

…

I suppose what I might have said … if he was out with friends and he came across police for whatever reason, I may have used the words, ‘It may be less embarrassing to make an arrangement to speak to us as opposed to being in contact with the police and being picked up by the police’.” (my emphasis)

[56]T 2-48 ll 34-36.

[57]T 2-48 l 39 to T 49 l 2.

1. Her evidence was that following this conversation, he said that he would come in and arrived at the police station earlier than expected, just before 11.30 pm.[58]

   [58]T 2-49 ll 8-12.

1. She denied that she took him into another room to wait before he was taken to the interview room.[59]

   [59]T 2-49 ll 34-41.

1. She said that she could not be sure whether his comment about wanting to get the matter sorted out as soon as possible because he was going back to the UK happened after the interview as opposed to before it.[60]

   [60]T 2-52 ll 1-12.

1. She said that she was aware of the RC requirement to inform persons of the offence in relation to which they were being questioned.[61]

   [61]T 2-52 ll 17-36.

1. She agreed that she did not do that during the ‘very brief” telephone conversation.[62]  She told him that there was an incident but “didn’t particularise exactly what occurred in those incidents, or those incidents themselves.”[63]

   [62]T 2-52 ll 30-39.

   [63]T 2-52 ll 47-49; At T 2-53 l 12 she said, “I didn’t particularise the offences themselves.”  At T 3-3 ll 46-49 she said that although she believed that she did mention “an alleged assault” during the phone conversation, she couldn’t say this with certainty.

1. She appreciated that when she commenced the interview, she needed to explain to him at least briefly what offence or offences she wanted to talk to him about.[64]  She agreed that she did not say to him, “Look, we have got a complaint in relation to two females of assault, and also of wilful damage to a car.”[65]

   [64]T 2-52 ll 16-19.

   [65]T 2-52 ll 32-34.

1. She said that prior to the interview she asked him if he understood why he was at the police station and she would have asked him the same thing at the start of the interview.[66]  Although I cannot find these words at the start of the interview, I take this to be a reference to her saying from p 6 l 50 of the transcript:

“… the reason you’re here is in relation to an incident that happened on the, Australia Day … and you’re aware of what I’m talking about in relation to an alleged assault that occurred at that time … .”

[66]T 2-52 ll 19-25.

1. Her evidence was that she sought clarifications of what the accused said during the interview to ensure that she understood what he was saying.[67]  This was the reason that the questions were asked about where he was lying on the bed in relation to Y.[68]  She believed that this was clarified as a result.[69]

   [67]T 2-57 ll 7-8; ll 21-23.

   [68]T 2-57 l 42 to T 2-58 ll 5-7 (“so that I didn’t misinterpret anything he should say”).

   [69]T 2-61 ll 10-12.

1. She was questioned about a diagram or mudmap that he drew to demonstrate their relative positions on the bed and the position of the bed in the room.  She had also drawn on this document in the course of seeking to ensure she understood what he was saying.  She is now not sure what she did and did not draw.[70]

   [70]T 3-7 ll 34-35.

1. Because she took the initial complaint, she said that she was the investigating officer.[71]

   [71]T 3-11 ll 1-5; ll 52-54.

1. There was extensive cross-examination with reference to the questions asked during the interview, suggesting that the police officers were repeatedly asking questions about the same issue, were cross-examining, attempting to belittle him, commenting on his answers, cutting him off and controlling his answers, badgering him and engaging in tandem questioning.  Her response was that there was detailed questioning on topics like where he started to roll a cigarette and the injuries he suffered, in order to understand what he was saying and to ensure that there were no injuries which they had missed.

1. Her evidence was that she was simply investigating a common assault on Y, and it was a DPP decision to charge him with sexual assault.[72]

   [72]T 3-21 l 58 to 3-22 l 15.

Re-examination

1. The Notice to Appear was tendered.  This detailed the offences of assault occasioning bodily harm on H, common assault on Y and wilful damage.[73]

   [73]T 3-31 l 35 to 3-32 l 6.

1. Constable Bakker said that there was no prearrangement for Sergeant Harrigan to be at the police station that day for the purposes of any interview.[74]

Sergeant Harrigan’s evidence

[74]T 3-33 ll 37-38.

Evidence-in-chief

1. His evidence was that on 5 February 2009 he was on traffic shift.  He did not know what Constable Bakker was rostered on for the day.[75]

   [75]T 3-35 ll 23-25.

1. He said that he first saw the accused coming from the foyer of the police station and going to the interview room which had been described by Constable Bakker.[76]  His estimate was that approximately 10 minutes passed from when he first saw the accused until the interview commenced.[77]

   [76]T 3-35 ll 40-53.

   [77]T 3-37 ll 14-17.

1. He said that there was general discussion before the interview commenced.  This involved Constable Bakker asking him some questions.  His evidence was:[78]

“The defendant replied like … he’d just recently come back from overseas, he was currently staying at West End, and obviously she asked the question if he was interested in participating in an electronic record of interview … and then she had to ask some further details of him, because you’ve got to key in, like, date of birth … middle names …

…

There was just talk in regards to the fact that he has rights of silence, he does not have to partake in the interview … but he still indicated that he wanted to partake in the interview.”

[78]T 3-37 ll 20-45.

1. With reference to the first words which appear in the interview transcript, “Constable Bakker will explain that all to you”, he said that this was said by him in response to the defendant asking what the interview would involve.[79]

   [79]T 3-38 ll 15-25.

1. At no stage did the accused complain to him nor to anyone else within his hearing about being at the police station.[80]

   [80]T 3-38 ll 30-35.

1. He described the accused as approachable, communicative and as speaking with them quite clearly when he first met them.  After the interview, the accused was communicative and quite responsive to any questions that they asked.[81]

   [81]T 3-38 ll 38-44.

1. On 18 February 2009, he was in the station car park when the accused stopped his car and asked the relevance of a question asked during the interview.  Sergeant Harrigan told him that it would be better if he got legal advice.  On this occasion the accused was described as being responsive and communicative in the course of a normal conversation.[82]  The accused thanked him and drove off.

   [82]T 3-39 ll 1-30.

Cross-examination

1. Sergeant Harrigan said that before the recorded interview commenced, Constable Bakker asked him, “Are you familiar with the assaults incident that occurred on the public holiday, Australia Day.”  He also said she used the words “assaults incidents”.[83]

   [83]T 3-40 ll 29 to 3-41 l 14.

1. He testified that when he said commencing at p 54 l 20 of the transcript of the interview that, “there’s the complaint that [Y] has been assaulted … and that’s what we’re going to cover now in the next statement”, his perception was that the accused knew that the two incidents were being spoken about because he had already related them in his general overview.[84]

   [84]T 3-48 ll 40-47.  The reference to “general overview” is to the accused’s explanation commencing at p 8 l 20 of the interview transcript.

1. He also said that at this point of the interview he was not trying to draw a line under H’s complaint to separate it from Y’s complaint.[85]

   [85]T 3-45 ll 30-35; T 3-49 ll 38-40.

1. Sergeant Harrigan agreed that he was aware of the requirements under s 33(3) of the RC.[86]  When it was suggested to them that the three offences being investigated had not been briefly described as opposed to “just assault”, he replied, “That’s two of the offences, wasn’t it” and went on to say that, “It was assaults on Australia Day.”[87]

   [86]T 3-50 ll 9-14.

   [87]T 3-51 ll 22-29.

1. He said that throughout the interview he did not notice any appreciable change in his response to questions and his communication with them.[88]

   [88]T 3-52 ll 11-15.

1. His evidence was that when they had attended the initial incident, Constable Bakker said that she wanted to follow through the investigation with this matter.[89]  They did not know that the defendant was going to interview on that day.[90]  On that day prior to the interview, in the absence of the accused, she told Sergeant Harrigan that she would like to do the interview.[91]

   [89]T 3-63 l 56 to 3-64 l 13.

   [90]T 3-63 ll 20-21.

   [91]T 3-63 ll 24-50.

1. At the time that Constable Bakker gave the caution, he had not formed an intention to ask any questions.  This intention was formed when he considered some clarification was required.  He did not caution the accused before he asked any questions.[92]  His evidence was that generally the two officers present during an interview are there to assist each other.[93]

   [92]T 3-66 ll 5-23.

   [93]T 3-63 l 10.

1. As with Constable Bakker, there was extensive cross‑examination directed to establish that the questioning was unfair and oppressive, a proposition that he denied.[94]  In the course of this cross‑examination, it was suggested that the questioning involved cross‑examination, adverse comments on what the accused had said, attempts to belittle him, and insinuate what he had said was nonsense, and cutting off his answers.

   [94]T 3-66 ll 24-31.

1. However, he did accept that towards the end of the interview he was trying to find out if the accused had any injuries of a substantial nature similar to H,[95] because “if he’s been hit over the head with a similar object, he would have similar sized injuries.”[96]  He conceded in relation to this that his questioning at pp 92-93 of the interview transcript were more statements than open-ended questions.[97]  He also conceded that a particular question on p 92 as clearly a comment.[98]

   [95]T 3-58 ll 29-33.

   [96]T 3-59 ll 10-13.

   [97]T 3-59 ll 40-43; T 3-60 ll 27-30.

   [98]T 3-56 l 38.

Re-examination

1. Sergeant Harrigan said that he did not personally caution the accused because he appeared to be quite clear that he understood the warnings given by Constable Bakker.[99]  It was his understanding that it was not necessary for each officer present to separately give a warning.[100]

Accused’s evidence

[99]T 3-67 ll 5-7.

[100]T 3-67 ll 21-24.

Evidence-in-chief

1. The accused testified that he received an unexpected phone call from Constable Bakker on 5 February 2009 while he was working as a painter at the Spring Hill dental school.  She introduced herself and said she was from Dutton Park police station; and also confirmed his identity.[101]

   [101]T 3-71 l 37.

1. He said that she asked him:[102]

“Do you know about an incident involving a bat at East Brisbane on the 26^th of January.”

He replied, “Yes, with two girls and a bat” to which she responded, “Yes”.[103]

[102]T 3-71 ll 40-42.

[103]T 3-71 ll 42-43.

1. He could not recall her saying that he was listed as a suspect and what might happen if he was picked up by other police.[104]

   [104]T 3-83 ll 18-19; ll 40-46.

1. His evidence was that she then said that he needed to make his way down to the Dutton Park police station.  He responded that he was at work and could not really leave right there and then.  She said that she needed to organise with him to come to the station as soon as possible.  She asked him where he was working, and after he told her, she said that she would either organise for a police car to come to pick him up or he could make his own way to the station of his own free will.  Because he did not want a police car turning up at work he said he would make his way down by 1 pm.[105]

   [105]T 3-71 l 43 to T 3-72 l 2.

1. He said that he arrived at the police station at approximately 11.20 am.  He met Constable Bakker, who took him to a room where she said that she wanted to ask him some questions and offered him a refreshment.  She left him here for at least 15 minutes.  When she returned she asked if he would like to organise any legal aid or if he would like a family member or to make a phone call.  He was quite shocked because he did not exactly realise what was going to be asked of him after this.[106]

   [106]T 3-72 l 23 to T3-74 l 3.

1. He said that when he went to the police station his expectation was that he would have to give a statement of some sort.  He did not think that he was going to be “grilled”, and asked a lot of questions that he had to answer immediately.  As he put it, he gave a statement to the best of what he understood that night.[107]

   [107]T 3-74 ll 7-11.  I note that the transcript uses “drilled”.  However, “grilled” appears elsewhere in relation to this issue.

1. He explained what he meant by saying:[108]

“Only I’d sort of given my statement, it was quite a lengthy – I mean I didn’t expect there was … any other, apart from [H] with the involvement with the bat.  When they pulled out the questioning about [Y] I had no idea … I wasn’t pre-warned that there was any assault with her at all.” (my emphasis)

He also said that he had no idea that there was damage to H’s car at that point.[109]

[108]T 3-75 ll 42-49.

[109]T 3-75 ll 51-52.

1. He said that there was no mention of any chance of “being charged of any sort”.[110]

   [110]T 3-74 ll 15-16.

1. He said that he was a bit shocked that he had to answer questions from the statements of both women, because while there had been mention that H had put in a complaint, there had been no mention that Y had put a complaint in as well.[111]

   [111]T 3-77 l 51 to T 3-78 l 4.

1. His evidence was that in the end he felt that he was getting bombarded quite a lot with questions, particularly once they started to question him about Y and about where he was on the bed.[112]

   [112]T 3-78 l 53 to T 3-79 l 2.

1. Again, with reference to the introduction of the questions about Y, he said:[113]

“I had no idea that [Y] had put any sort of complaint against me, or what do you call it, complaint against me.  I had understood the situation that had happened with [H] and myself with the bat, but I had absolutely no idea that I was going to be questioned or that [Y] had put any sort of complaint against me from the start.”

[113]T 3-81 l 56 to T 3-82 l 3.

1. He said that if he had known that there were wider issues than those involving H, he felt that he “would have asked for some legal aid at least” because while he felt confident that he could give a good statement about what happened with H, he had no idea about Y’s complaint until they pulled her statement out in front of him in the interview.[114]  In this context, his evidence was:[115]

“So if you had known about those additional maters would you have participated in the interview? - - I would have definitely got some sort of legal advice or aid to assist me with doing the interview.

Before making the decision? - - Before making the decision, yes.”

[114]T 3-82 ll 5-13.

[115]T 3-82 ll 15-20.

1. In relation to the bed, he thought that it was fairly easy to understand the way he had said about it.  But in the end, he was completely confused about the whole situation because of the questions that he was asked.[116]

   [116]T 3-80 ll 19-25.

1. He said that he thought he did quite well in assisting as much as possible to tell the police exactly what had occurred.[117]

   [117]T 3-81 ll 47-50; see also T 3-78 ll 20-26.

1. However, he felt that as the interview progressed to the last 20 pages of the transcript, they were asking him too many questions about what happened and “literally trying to cross-examine him on the spot about things”.  He said that he had “no problem with answering what they asked me, but I felt that I was getting sort of completely bombarded by questions that I really shouldn’t have had to have answered right there and then about the situation.”[118]

   [118]T 3-82 ll 22-30.

1. With reference to his injuries, he said that he lifted his shirt up during the interview to try to show the police officers bruising, including on his head.  However, it was a bit hard to find so long after the event.[119]  He seemed to complain that the police never suggested that he should go and get proof of being hit, except in answer to his questions at p 98 ll 15-17 of the interview transcript, where he asked whether he should be going to get a head scan to see if there was bruising and Sergeant Harrigan replied affirmatively.[120]

   [119]T 3-83 ll 7-11.

   [120]T 3-81 ll 33-36.

1. He said that he was hoping to clear the matter up, and he did not understand that by retaliating after being hit with a bat that he was in jeopardy of being charged.[121]

   [121]T 3-78 ll 27-32.

1. By the time he got out of the police station, he said that he “was quite exhausted by the whole thing”.  He did not expect he would be there for two hours, and had not eaten since breakfast.  He said he had left for work at 6.50 am.[122]

   [122]T 3-78 ll 34-45.

1. He said that he had never been involved in a record of interview before.[123]

   [123]T 3-76 ll 12-13.

1. His evidence was:[124]

“I sort of in my mind felt that …. I should be the one putting charges against somebody for, you know, somebody coming at me with the bat.  I had no idea that I was at risk of being charged myself.  I’d asked Jo later on in the interview about laying charges, and she said that I could lay charges up to six months later, but then she got me to sign a piece of paper on her notebook stating that I didn’t want to lay charges that day.”

[124]T 3-74 ll 24-31 (“Jo” is a reference to Constable Bakker).

1. His evidence was that he first went to a lawyer in relation to the matter, a day after he actually got charged.[125]  This is on 19 February2009.

   [125]T 3-81 ll 15-17.

Cross-examination

1. The accused said that he planned to return to the UK around April 2009.  Therefore the police interview came at an inopportune time for him.  He wanted to make sure that it did not interrupt what he had organised for the year.[126]

   [126]T 3-84 ll 22-44.

1. After realising that he had to go to the police station to give a statement, he realised that this could have problems for him wanting to get back to the UK.  Although he said that he did not realise that he would be charged as opposed to H.[127]

   [127]T 3-85 ll 4-8; ll 18-23.

1. He said that he was keen to get it sorted out quickly.[128]

   [128]T 3-84 l 44; ll 53-56; T 3-85 l 14.

1. Although he could not exclude that Constable Bakker did not say that the would be listed as a suspect, he was pretty sure that she did not.[129]  He believed that what he said was the closest acknowledgement that he could recall of the telephone conversation.[130]  Although the first time he had sought legal advice about the legality of the interview was when he spoke to Mr Smith for five minutes about two days previously, he said he could always remember most of the phone call.[131]  He accepted that he could well be mistaken about this conversation.[132]

   [129]T 3-87 ll 38-41.

   [130]T 3-90 ll 52-56.

   [131]T 3-90 ll 12-36.

   [132]T 3-91 ll 1-3.

1. He understood that he was at the police station to explain what had happened between H and him with the bat.[133]

   [133]T 3-94 ll 1-3.

1. He understood that the caution meant that he did not have to say anything at all, but he was trying to assist in anything that he could.[134]

   [134]T 3-94 ll 28-30.

1. He said that he was under no misapprehension that he could have said that he was not going to do the interview and walk out, but it was not really in his nature to do that.[135]

   [135]T 3-94 ll 32-35.

1. He agreed that he made a conscious and reasoned decision that he would take part in the interview because he wanted to help with whatever information they wanted to know.[136]  Although he knew that he did not have to take part, this would have caused him more problems.[137]

   [136]T 3-94 ll 37-38; ll 45-56.

   [137]T 3-94 ll 40-43.

1. One of the police officers told him before the tapes were turned on that H had made a complaint.[138]  At that point he had no reason to think that Y had made a complaint against him.  Although he knew that “it was about two women and a bat” he realised that there were two girls at the house.[139]  As far as he knew, the only thing that had happened was between him and H.[140]

   [138]T 3-95 ll 36-41.

   [139]T 3-96 ll 38-46.

   [140]T 3-97 ll 26-29.

1. However, he agreed that when the issue involving Y was brought up he could have said that he was not going to answer any questions, but he chose to do so.[141]  Even at this stage he was trying to assist as much as he could.  He agreed that he had made a conscious decision to assist.  Although he understood throughout the whole interview that he had the right to say he would not answer any more questions, he was not the sort of person to say this.  He said that there would be no problems trying to answer any questions asked of him. He did not feel that he had anything to hide.[142]

   [141]T 3-97 ll 43-48.

   [142]T 3-98 ll 18-37.

1. Although he understood that everything was being recorded and may be later used against him in court, he did not realise the extent of what the whole interview was going to go to.  He was under the impression that he just had to give a statement about what happened.[143]

   [143]T 3-98 ll 43-50.

1. He said that he knew that he was not under arrest.[144]

   [144]T 3-98 l 52.

1. He knew that he was being investigated in relation to the complaint made by H and he knew it was possible that what he said could be used against him in court.  He also knew that it was important to tell the truth.[145]

   [145]T 3-99 ll 12-24.

1. He agreed that he had not received any threat, promise or inducement to take part in the interview to the best of his understanding of the meanings of those words.[146]  He also agreed that he gave those meanings in the context of being at the police station, although he used it as a reference to being anywhere.[147]  He said that he was more concentrating on trying to give a correct statement about what had happened rather than on the words used.[148]  He said that he did not really think he understood what inducement meant.[149]

   [146]T 3-99 ll 29-34.

   [147]T 3-101 ll 1-10.

   [148]T 3-102 ll 10-16.

   [149]T 3-102 ll 25-28.

1. He accepted that:

·     He made an effort to get his story across.[150]

[150]T 3-102 ll 18-19.

·     On a number of occasions he did not agree with what was suggested to him.[151]

·     On a few occasions he stoped the interview to clarify some things.[152]

·     He disagreed with what was said on at least 24 occasions and put his side of the story.[153]

[151]T 3-102 ll 21-23.

[152]T 3-102 ll 54-55.

[153]T 3-105 ll 23-34.

1. He was feeling a little bit tired by the later section of the interview because he had to had anything to eat since breakfast.  He felt pressured because he had two people asking him questions, more so in the second half.  He felt it was pretty full on to have to answer so many questions straight away.[154]

   [154]T 3-103 ll 24-35.

1. However, he did not stop the interview because he did not want to hold it up.  He felt that he needed to go on to try to assist them with as much as he could.[155]

   [155]T 3-104 l 1-5.

1. He said that he started to feel under pressure once he finished giving his statement as far as his understanding of what had happened that night.[156]

   [156]T 3-104 ll 7-11.

1. Although he felt that he was getting hammered by the two officers, he could not see why Sergeant Harrigan would not be allowed to ask questions.[157]  He understood that the caution applied to whoever was asking questions.[158]

   [157]T 3-104 ll 42-43.

   [158]T 3-105 ll 12-14.

1. He said that he wanted to answer the questions to cooperate with the police and he told them everything he could to assist them.[159]  He understood that it would not have helped his situation not to answer; and that was why he voluntarily decided to take part in the interview.[160]

   [159]T 3-105 ll 16-21.

   [160]T 3-104 l 55 to T 3-105 l 5.

1. At the conclusion of the interview he was not upset at the way he had been treated, although he was a bit exhausted at that time.[161]  He also agreed that he had not been badly done by by anyone.[162]

   [161]T 3-105 ll 38-43.

   [162]T 3-111 l 9.

1. He said that they were trying to cross-examine him towards the end of the interview because they went over things that he had already answered.[163]

   [163]T 3-107 ll 7-11.

1. He agreed that the confusion about the positions of he and Y on the bed seemed to come from when he mistakenly agreed with a proposition from Constable Bakker at p 62 of the interview transcript that Y was lying on her right-hand shoulder.[164]

   [164]T 3-110 ll 6-14.

1. He agreed that after the interview he had no problem talking to either police officer.[165]

   [165]T 3-111 l 30 to 112 l 6.

Re-examination

1. He said that when he had the initial phone call with Constable Bakker he could have taken it the wrong way that she indicated that either he organise to make his own way to the police station in his own time or she could organise a police car to pick him up from work.[166]

   [166]T 3-113 ll 8-12.

1. He said that when he went to give his statement he was not warned that there was any possibility of being charged.[167]

   [167]T 3-113 ll 23-25.

1. He said that when he spoke about going to the police station to give his “statement” he was referring to his “version of events”.[168]

   [168]T 3-115 ll 13-22.

Accused’s submissions[169]

[169]T 4-13 l 24 to 4-49 l 33; outline of submissions by defence.

1. Mr Smith submits that the prosecution has not discharged its onus to establish on the balance of probabilities that the confession was made voluntarily.

1. His submission is that the interview should be excluded in its entirety because the only free will exercised by the accused in a real sense was to go to the police station to avoid the embarrassment of police picking him up from work to question him in circumstances where he thought that his explanation of what happened with the bat “incident” would result in him being exonerated.  He argued that he retained a naïve belief that the reception of his statement was all that was necessary to illustrate that he was the victim of an unprovoked assault.  He said that when the accused came to the police station he felt that he was the victim and that the truth would come out by doing everything that the could to help the police.

1. Mr Smith submits that the accused knew that he did not have a choice to go to the police station.  He argues that his version of events about this is to be preferred where there is any difference between Constable Bakker and him.

1. He submits that the demeanour and presentation of the accused as a witness was that of a person who was doing his level best to recall what actually happened.  He suggests that he showed a refreshing candour in his evidence, being prepared to make concessions whereas the police were loathe to do so.  While Mr Smith did not suggest that the police had been untruthful, in his submission they lacked candour and had the greater interest of maintaining the confession.  For example, he argued that there were some discrepancies in their respective accounts of who was present at the pre-interview discussions at the police station.

1. It was submitted that during cross-examination it was not suggested to the accused that he was untruthful in the context of his evidence about the telephone conversation with Constable Bakker.  It was simply suggested by Mr Byrne that he was mistaken about parts of the conversation.

1. Mr Smith also made the point that Mr Byrne did not put to the accused that his evidence about seeking the services of a lawyer, had he been appraised of the entire matters of complaint before participating in the interview, was some sort of self-serving pretext.

1. He submitted that the accused’s involuntary presence was not cured by the subsequent warning or his acknowledgment that he had come to the police station of his own free will.  In his submission this is exacerbated by the failure to give the accused particulars about the offence around which the questioning would revolve, with the result that he was questioned about matters that he did not believe he was going to face.  He illustrates this by what he describes as the accused’s expression of surprise when Y’s complaint was introduced during the interview and his evidence that this came as a shock to him.  It was also argued that he did not come to the interview as prepared as the police.

1. Notwithstanding this he concedes that in evidence, the accused raised matters additional to what had been put to the police in cross‑examination which undermine, to some extent at least, those aspects of voluntariness, particularly in relation to H.

1. Mr Smith submits that after p 26 of the interview transcript when the complainant’s statements are introduced, the questioning is such as to indicate that the accused was overborne. Further, it is said to fail the test of fairness in every imaginable respect, being punctuated by cross-examination, comment, ridicule, badgering which approached an harangue, repetitive and onerous questioning, trickery, misrepresentation, constant gratuitous interruptions by Sergeant Harrigan, who was the senior police officer, without any warning to the accused (as required by s 431 of the PPRA and s 37 of the RC), and the use of statements by the complainants in such as way as to convey their absolute inviolability. He argues that there is a refusal to accept any answers by the accused without comment, persistent interrogatories, importunity and tandem attacks by the police on anything he says such as to create the impression that he has no credibility at all.

1. To illustrate this submission, Mr Smith provides the following examples:

·     Although Constable Bakker warned the accused in substantially the terms required, there is no similar warning given by the more senior officer.  It is submitted that, given the zealous involvement of Sergeant Harrigan as the interview progresses, he should have provided a warning in similar terms, particularly given his seniority.  It is argued that this was in contravention of the RC, and at last should be taken into account in the exercise of the discretion.

·     Of the 98 full pages of transcript, all but 22 have Sergeant Harrigan questioning frequently in tandem with Constable Bakker, being continually involved from pp 57 to 98.

·     The statement of H is introduced at p 26 l 20 and he is then asked to comment and respond as it is read out to him.  However, rather than affording him the right to communicate and respond, this statement and the one by Y are primarily used as a foundation for the police to emphasise their evidence and to comment unfavourably with a view to discrediting any version proffered by the accused.

·     After the accused has mentioned having some bruising, Sergeant Harrigan unfairly misrepresents that he is linking it to H’s statement (p 40 l 14) and both officers question him in tandem, misrepresenting what he said.  More misrepresentation is said to arise about the bruising, “You said on your hands” (p 41 l 24) when he had already said “arms” (p 40 l 37), which answer Harrigan and Bakker (p 41 l 28) would not accept.  There is further questioning about this at p 42.  Further, Sergeant Harrigan regularly returns to the marks and the interrogation becomes pestering.

·     Constable Bakker wrongly puts two inconsistent propositions to the accused about what he said about rolling a cigarette.  It is argued that this involves an improper series of questions which are not designed to clarify but to discredit him, based on a mistaken premise, and have the effect of confusing him.

·     Unfair and oppressive questioning is identified on 29 pages between pp 50 and 91.

1. It is submitted that the tandem questioning was attended by persistent importunity and undue insistence or pressure.[170]  The whole tenor of the interview was plainly unfair, especially after the police introduced the statements made by the complainants and called on him to answer.  This is argued to be the start of a free-for-all barrage of badgering, especially led by Sergeant Harrigan, where once an explanation is given by the accused, he is subjected to questioning calculated to contradict the explanation.[171]

   [170]Reference is made to McDermott v The King (1948) 76 CLR 501, per Dixon J at 511, 515; Clelland v The Queen (1982) 43 ALR 619, 628-9, 636.

   [171]R v Brauer [1937] QWN 18.

1. With respect to the application of s 33 of the RC, he concedes that the real issue is whether the particulars given by the police constitute a brief description of the offence.  He also accepts that it is necessary to adapt s 33(2) to the circumstances of the case.

1. Mr Smith also said that he does not think he can argue against the proposition that, at least so far as the interview is concerned, there was sufficient compliance with s 33(3) in relation to H’s complaint of assault.

1. Subject to this, it is submitted that the questioning of him up to p 7 l 20 of the interview is not sufficient compliance with s 33.

1. Mr Smith argues that the Crown case can stand without the interview.  He suggests that the interview is being led as part of its case to discredit the accused because it believes it has a better chance of securing a conviction if the interview is admitted, e.g. to argue that his explanations do not amount to provocation or self-defence.

1. It is also submitted that the admission of the interview would make the accused’s right of last reply, should he not give evidence, completely illusory since the jury would be left with an interview that has effectively achieved what a prosecutor would desire from cross-examination.[172]  The point is made that by introducing the complainants’ statements during the interview, the Crown has a significant advantage through having this information before the jury if they do not come up to proof.

   [172]R v Kallis (1994) 2 Qd R 88 at 89, 94.

1. He also submits that this was at best a clumsy performance and at worst an interview deliberately and recklessly calculated to inflict serious damage to the credibility of the accused and was oppressive to him.

Crown submissions

1. Mr Byrne submits that involuntariness is not an issue in relation to anything that was said to the accused by Constable Bakker during the telephone conversation, because:

·     I will not accept that Constable Bakker told the accused that he had to come to the police station, nor that he had to come that day.

·     In the interview the accused denied that he had been given any threat, promise or inducement in terms of going to the police station.

1. He refers me to aspects of the accused’s own evidence in support of his argument that the prosecution has established on the balance of probabilities that the confession was made in the exercise of a free choice to speak or remain silent, and in particular that:

·     The accused made a conscious decision to take part in the interview.

·     He made a conscious decision to answer the questions concerning Y.

·     He recognised that he could refuse to answer any questions at any time but nevertheless made a conscious decision to continue to answer.

1. I am also satisfied on the balance of probabilities that the interview was not so marked by cross-examination, comment, ridicule, badgering, repetitive and onerous questioning, trickery, misrepresentation and constant intervention by Sergeant Harrigan as to require its exclusion on the grounds that the accused’s participation was involuntary.  Although there are some aspects of the record of interview which I indicated in argument I would exercise my discretion to exclude as cross‑examination and comments or statements made by the officers, in fairness to the accused, these are not sufficient to alter my view that the accused’s participation was voluntary.

1. As I have already concluded, the accused was not submissive or gratuitously compliant during his interview.  Rather, he was at all times anxious to give his own version of events.  In addition, making use of my advantage of observing the accused during the interview, he appears relaxed and composed throughout.

1. During the interview, he draws a diagram of Y’s bedroom and their respective positions on the bed to explain his position.  He takes off his shirt to illustrate or look for injuries he alleges that he suffered as a result of H’s attack upon him.  He acts out events which have happened.  Even during the last six minutes of the interview, when he says he was feeling tired and under pressure, he stands up to give a demonstration.

1. I do not consider the police to have been overbearing in their attitude or demeanour.  I consider Constable Bakker to have been pleasant to him throughout the interview, and I would describe Sergeant Harrigan as laconic rather than overbearing.

1. Despite the criticism of the conduct of the interview on the basis of the transcript, it is relevant that the DVD is the evidence and not the transcript.  It is the video which shows the interaction between the police interviewers and the accused.  It is on the basis of my observations of the interaction on the DVD that I reject Mr Smith’s criticism of the approach taken by the police officers.

1. Although as I have indicated there are some instances of cross-examination which I would exclude, these are minor in the context of the interview.  Other than this, I consider that the suggestions of cross-examination, comment, badgering, haranguing, repetitive questioning, constant intervention by Sergeant Harrigan and tandem questioning are no more than attempts by those officers to clarify and understand the accused’s version.  It was essential that they clearly understood what the accused is saying in order for them to decide whether there was sufficient evidence to charge him, and if so, with what offence or offences.  For this reason, they are not required to be simply silent recipients of information.  In general, I consider they have asked open-ended questions which are consistent with attempts at clarification of what he has told them.

1. I also do not consider that they have been involved in trickery and misrepresentation.  There are occasions where one or other of the officers has inaccurately stated what the accused has said to them.  For example, at p 44 l 35, the accused described himself as blocking the blows which he alleged H delivered to him with the piece of wood, and described being hit on the arms.[179]  However, at p 92 ll 17-18, Sergeant Harrigan asked a question in terms of, “the fending with the hands, there’s no bruising on the hands?”.  The accused responded that he “actually sort of blocked”, demonstrating his preparedness to correct the police when they made an inaccurate statement rather than being overborne by them.  I regard this as no more than a human error of memory in the course of a long interview in which none of the participants had the benefit of a transcript.  I do not consider this and other examples given by Mr Smith as involving trickery or misrepresentation.  I note that p 92 is also an example of a part of the interview that I will exclude because of what could properly be interpreted as involving the making of statements, comments and cross-examination, rather than for any other reason.

   [179]For a reference to “arms”, see the interview transcript at p 40 l 36.

1. In addition, as Mr Byrne submits, the accused said that he was not upset at the way he was treated and his subsequent voluntary conduct with each officer was inconsistent with someone who was overborne by them.  I will say more about this when I address the issue of discretionary exclusion of the interview.

1. In a situation where the accused made a conscious decision to take part in this interview and to continue to do so even after Y’s complaint was introduced, with the purpose of putting his story across to the police as best he could, I am satisfied on the balance of probabilities that at all times he was participating in the interview in the exercise of free choice to speak or remain silent.

1. Although he claimed that when he went to the police station his expectation was that he would give a statement about what happened (or, as he put it, about “his version of events”) and had no idea that he was at risk of being charged himself, I am satisfied for the reasons I have given that he knew that he was at least a suspect for what had happened between he and H with a bat.  In addition, he knew at the time of the interview that it was being recorded and what he said about H’s complaint could be used against him in court.  I consider that he must equally have understood that what he said about Y’s complaint and that the allegation of wilful damage of the motor vehicle could also be used against him in this way.  He also said it was important to tell the truth.

1. It is also irrelevant that the accused did not come to the interview as prepared as the police.  This will frequently, if not invariably, be the case, and does not diminish the fact that the accused made a conscious decision to take part in this interview to get his story across.

1. Mr Smith in fact conceded during argument that in evidence, the accused raised matters additional to what he had put to the police in cross-examination which undermine to some extent those aspects, particularly in relation to H.

1. In these circumstances I am satisfied that the prosecution has established on the balance of probabilities that what was said by the accused in the record of interview was said by him in the exercise of a free choice to speak or to remain silent.  To adopt the language in Tofilau, having observed the accused’s interaction with the police officers during the interview, there was no duress or intimidation, and no importunity, insistence or pressure of a kind exerted by the person to whom the confession was made that would found the conclusion that the appellant had no free choice to speak or remain silent.  Not only was the accused not submissive, but he appeared relaxed and composed throughout the interview.

1. Therefore I am satisfied that the accused’s participation in the interview was voluntary, and what he said during it is not to be excluded in whole or in part under s 10 of the Criminal Law Amendment Act 1894.

Exclusion of the interview as an exercise of discretion

1. As the authorities which have been discussed above establish, even if voluntary, I have a discretion to exclude the interview if the accused satisfies me that:

·     it would be unfair to him to admit it (unfairness discretion); or

·     it has been improperly or illegally obtained (public policy discretion); or

·     its prejudicial impact is greater than its probative value.

1. Because I have rejected Mr Smith’s submission that the police officers engaged in unfair and oppressive behaviour of the type identified at [173] above, the relevant issue for consideration is whether the police have substantially complied with s 33 and s 37 of the RC.

1. In my view, s 33(2) applies to the initial phone call by Constable Bakker with the necessary adaptations.  On the facts of this case, given that I am satisfied on the balance of probabilities that she did not tell the accused that he had to come to the police station, the issue for determination is whether she substantially complied with the requirement to briefly describe the offence about which she wished to question him.

1. I have concluded that during this conversation, Constable Bakker asked him to come to the police station to speak to him in relation to an incident on Australia Day 2009 for which he was a suspect, to obtain his version of events in circumstances where he understood it related to what had happened between H and him with a bat, as he described it.

1. Mr Byrne has submitted that this is sufficient to substantially comply with the requirement of briefly describing the offence.  While I agree with him that it is not necessary to formulate the wording of the charge, there was not sufficient said by Constable Bakker to identify the time, place and the incident being spoken about to amount to substantial compliance.

1. The requirement is to briefly describe the offence and not to briefly describe the incident.  While in some circumstances a description of the incident may be sufficient to also describe the offence, this is not sufficient in the present case where she was investigating the accused for three possible offences.  For the reasons I have already given, her description of the incident did not go further than describing the alleged offence of assault against H.  It was not sufficient to briefly describe that it was also intended to question him about the common assault on Y and the wilful damage of H’s vehicle, which were the other possible offences being investigated.  His understanding that the incident involved “two girls and a bat” does not alter this situation.

1. Therefore, I do not consider that there has been substantial compliance with s 33(2) of the RC.

1. I agree with Mr Byrne that the preliminary questioning, which finished at p 7 l 20 of the interview transcript, is not questioning about the accused’s involvement in the commission of an indictable offence for the purposes of s 415 of the PPRA and therefore is capable of satisfying the requirements of s 33(3) of the RC. However, as with s 33(2), I consider that this questioning substantially complies with the requirements of s 33(3), with the exception of briefly describing the offences about which the police officers wished to question him. This is because in the case of s 33(3) also, the description provided went no further than an assault on H, in the context of the information which was given to him. Again, it did not go further to briefly describe that it was also intended to question him in relation to the other two possible offences.

1. Therefore, I do not consider that there has been substantial compliance with s 33(3) of the RC.

1. However, in my view, there was substantial compliance with the requirement under s 37(1) to caution the accused about the right to silence, not only because Constable Bakker gave the caution in accordance with the terms of this provision, but also because I agree with Mr Byrne that it was not necessary for both officers who asked questions during the interview to give the caution before questioning him.  I agree with Mr Byrne that the provision does not limit the warning to only the questions asked by the person giving the warning, who is Constable Bakker in this case, but requires the person giving the warning to explain that the interviewee has a blanket right not to answer any questions asked from that point.

1. Therefore it was not necessary for Sergeant Harrigan to also give a warning to the accused substantially in terms of s 37(1) before he asked him any questions.  As has been observed, the accused gave evidence that he understood that the caution applied to whoever was asking the questions and that he could stop the interview at any stage he chose not to do so.

1. For the same reason, I do not consider that there was any necessity that the accused be warned before he was questioned about each possible offence.

1. Accordingly, the relevant issue for consideration of whether I am satisfied that I should exclude all or part of the interview in the exercise of my discretion is whether I should do so in circumstances where there has not been substantial compliance with the requirement of briefly describing the offence about which it was wished to question him, under ss 33(2) and 33(3) of the RC.

Unfairness discretion

1. The first question is whether this unlawful police conduct is such that it would be unfair to the accused to admit what was said by him during the interview.

1. As stated in Swaffield with reference to Van der Meer, the question is not whether the police have acted unfairly, but whether it would be unfair to use the accused’s statement against him to the extent submitted by Mr Byrne.[180]  Unfairness in this sense is concerned with the accused’s right to a fair trial which may be jeopardised if his statement was obtained in circumstances which affect the reliability of the statement.[181]

   [180]See paragraph [20] above as to his argument in support of the relevance of the record of interview to the Crown case, and with which I agree.

   [181]The Queen v Swaffield (1998) 192 CLR 159 at 189 [53]; Van der Meer v The Queen (1988) 62 ALJR 656 at 662.

1. In this case it has not been suggested that the accused gave false answers as a result of the unlawful police conduct.  His evidence was that he understood that he was at the police station to explain what had happened between H and him, with what he described as the bat.  Notwithstanding his surprise when the issue of Y was brought up and his knowledge that he could have said that he was not going to answer any questions, he chose to do so, because he made a conscious decision to assist.  He did not have any problems answering the questions because he did not feel that he had anything to hide.  At the conclusion of the interview, he said that everything he had said in the interview was the truth.

1. In the case of Y’s complaint, there was again no gratuitous compliance or submissiveness.  For example, when it was drawn to his attention that Y alleged that she was woken up by a male on top of her, he replied:

“… I wasn’t on top of her, I disagree.”[182]

[182]Transcript of police record of interview, p 68 ll 26-31.

And when he was told that Y alleged he was holding her arms down to the side with his hands, he replied:

“No, that’s not true.”[183]

He also said, “there was no forced, anything forced.”[184]  He also denied that he said, “let’s fuck”.[185]  In response to the question, “So, is it possible from the tone of her voice you got the message and he got off me, is that right?” was, “I wasn’t on her.  I was next to her.”[186]

[183]Ibid, p 69 ll 6-14.

[184]Ibid, p 69 ll 30-31.

[185]Ibid, p 73 ll 7-15; p 74 ll 19-20; p 75 ll 14-16; p 76 ll 6-21.

[186]Ibid, p 77 ll 44-47.

1. Although he said he became confused about the whole situation in relation to the bed because of the questions he was asked, he agreed that this confusion seemed to come from his mistakenly agreeing with a proposition from Constable Bakker about how Y was lying on the bed.

1. The fact is that he was keen to get the matter sorted out, and he continued to participate in the interview even after Y’s complaint was introduced, with the purpose of putting his story across.  It is obviously for this reason that it was not suggested that there were false answers given by him, not only in relation to Y’s complaint but also with reference to the allegation he had wilfully damaged H’s vehicle.  Throughout the interview he denied using the piece of wood or doing anything else to smash the window.

1. In these circumstances, there is no evidence before me that the accused’s right to a fair trial may be jeopardised by his statement being obtained in circumstances that would affect the reliability of his statement.

1. In Van der Meer, Kirby J said at 125-126 [191]:

“… and whilst unreliability of an admission might be a ‘touchstone of unfairness’, it is ‘not to be the sole touchstone’.  It might be ‘that no confession might have been made at all’, had the police investigation been properly conducted.”

1. In this case, the accused claims that if he had known of the additional matters about which the police wanted to interview him, he “would have definitely got some legal advice or aid to assist him” before making the decision to do the interview.  Mr Smith made the point that Mr Byrne did not put to the accused that this evidence was some sort of self-serving pretext.  In other words, it is suggested that the accused may not have participated in the interview if it were not for the unlawful police conduct.

1. However, I consider that it was not necessary for Mr Byrne to put to the accused that his evidence about this was not a self-serving pretext in the following circumstances.

1. His evidence was that he was shocked when, before the interview, Constable Bakker asked if he would like to organise legal aid or if he would like a family member or to make a phone call, because he did not exactly realise what was going to be asked of him after this.  Notwithstanding this, he did not seek legal aid at this time.

1. It is also relevant that he subsequently made voluntary contact with Constable Bakker, whom he called by her given name “Jo”, and Sergeant Harrigan.

1. On 18 February, the day on which the accused was served with the notice to appear, he stopped his car and asked Sergeant Harrigan about the relevance of a question he had asked during the interview.

1. Of more relevance is that in the context that he first went to a lawyer in relation to the matter on 19 February 2009, a couple of days after being served with the notice he called Constable Bakker and not only told her that the aluminium bat could have bounced from the roadway and smashed the car window, he also said he could use provocation as a defence.  This conversation must have been had on 20 February at the earliest, but after he had consulted a lawyer.  In other words, he continued to talk to the investigating officer to give an explanation in response to the allegations after he consulted with a lawyer.

1. In these circumstances, I am not satisfied that he would have got some legal advice to assist him in making the decision to do the interview.  To the contrary, because he was keen to get the matter sorted out by putting his story across, he would have entered into the interview even if he knew the full extent of the police investigation.

1. Accordingly I do not consider that the accused’s right to a fair trail would be jeopardised by admitting the interview, notwithstanding the unlawful police conduct in not first advising him that it was intended he question him about possible offences involving common assault on Y and wilful damage to H’s motor vehicle.

1. Therefore, I do not exercise my discretion to exclude the evidence on the ground that it would be unfair to him to admit it.

Public policy discretion

1. In this case I proceed on the basis submitted by Mr Byrne that the failure of the police to substantially comply with s 33(2) and s 33(3) of the RC was through inadvertence and not through a deliberate or reckless disregard for the law.  As Mr Byrne submits, it has not been suggested that Constable Bakker had deliberately ignored these provisions.

1. As I have concluded, Constable Bakker did make it clear that she was investigating him as a suspect in relation to what had happened between him and H.  She otherwise complied with ss 33 and 37.  This supports the proposition that her unlawful conduct was through inadvertence.[187]

   [187]It is relevant that although Constable Bakker’s evidence was that she was aware of the RC requirements to inform persons of the offence in relation to which they were being questioned and that she needed to explain to the accused at least briefly what offence or offences she wanted to talk to him about, at this time she had less than two years’ experience as a police officer (T 2-42 ll 7-14).  Although Sergeant Harrigan was obviously the more experienced officer, it was Constable Bakker alone who made the initial phone contact with the accused, and who was the principal interviewing officer.  The way in which the subject matter of the interview was described to him followed from her description in that initial phone contact.  I am also satisfied that this description by her was influenced by the fact that the allegations of common assault on Y and the wilful damage to H’s motor vehicle were incidental to the allegation of assault on H.

1. The fact that she and Sergeant Harrigan were acting under the mistaken belief that they were entitled to do what they did is the first matter to be considered in accordance with the Bunning v Cross principles.

1. The second matter is that for the reasons that I have already given, the nature of the illegality does not in this case affect the cogency of the evidence so obtained, it not being suggested that the accused gave false answers as a result.

1. In Bunning v Cross it was said that if other equally cogent evidence, untainted by illegality, is available to the prosecution at the trial, the case for the admission of the evidence illegally obtained will be weaker.  In this case, Mr Smith argues that the Crown case can stand without the interview.  This involves a suggestion that there is equally cogent evidence from H and Y.  However, based on the accused’s explanation during the interview, the defence case will be that a jury will not be satisfied beyond reasonable doubt about the truthfulness and reliability of the evidence of H and Y.  In other words, it will be submitted that their evidence is not cogent.  In these circumstances, the Crown is entitled to rely on the cogency of the accused’s version in the record of interview to the extent of establishing that his admitted assault on H involved the use of excessive force, his cuddling next to Y on the bed while he was naked was a sexual assault, and he was in possession of a wooden implement consistent with causing H’s injuries and damage to her motor vehicle.  Therefore, despite the evidence of H and Y, there is a strong argument in favour of the admissibility of the illegally obtained evidence in this case, subject to complying with the principle in Soma.

1. With reference to the third factor, as Mr Byrne concedes, it cannot sensibly be argued that the law could not have been easily complied with.

1. The fourth factor is that the allegations are that serious offences have been committed.

1. With reference to the fifth factor, the PPRA and the RC have been enacted with a deliberate intent on the part of the legislature to narrowly restrict the police in their power.[188]

   [188]This is reinforced by s 4(3) of the PPRA, which provides that the purposes of the Act include, “to ensure fairness to and protect the rights of, persons against whom police officers exercise powers” under it.

1. On balance, I consider the inadvertence by the police in complying with the legislative requirement, the cogency of the evidence obtained, and the seriousness of the offences with which the accused is charged, favour the admission of the interview.

1. As recognised by Deane J in Bunning v Cross[189] in cases of isolated and merely accidental non‑compliance, particularly if the offences are serious, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds.  It is cases involving a deliberate or reckless branch of statutory obligation which will ordinarily dictate that the judicial discretion be exercised to exclude the evidence.  I consider that the present case comes within the former category.

   [189]At 203-205.

1. This is not a case in which the admission of the interview or the obtaining of a conviction on the basis of the evidence would be bought at a price which is unacceptable, having regard to contemporary community standards.

1. Accordingly, I do not consider that I should exercise my discretion to exclude the interview on public policy grounds in the present case.

Exclusion of evidence where prejudicial affect exceeds probative value

1. In relation to this ground of exclusion, Mr Smith refers to Mr Byrne’s concession as set out in paragraph [205] above and argues that:

·     The Crown case can stand without the interview and it is being led as part of its case to discredit the accused because it believes it has a better chance of securing a conviction if the interview is admitted.

·     The admission of the interview would make the accused’s right of reply, should he not give evidence, completely illusory since the jury would be left with an interview that has effectively achieved what a prosecutor would desire from cross-examination; and by introducing the complainants’ statements during the interview, the Crown has a significant advantage through having this information before the jury if they do not come up to proof.

1. I have addressed the first issue in paragraph [270] above. In doing so, I have concluded that the Crown is entitled to rely on the cogency of the accused’s version in the record of interview, and as such it is cogent and relevant for the reasons argued by Mr Byrne.

1. The second issue is drawn from R v Kallis[190] in which it was held that a judge should ordinarily exclude those parts of a video-taped interview between police officers and an accused person consisting merely of argumentative observation by those officers critical of his version of events, as such observations have a prejudicial effect outweighing their probative value.

   [190](1994) 2 Qd R 88.

1. Ambrose J said:[191]

“The appellant in this case did not give evidence.  Any consequent advantage that he may have obtained from his right of reply to the prosecutor’s address to the jury, became largely illusory when the jury took with them into the jury room the video-recording of the police interview containing the critical observations of the police officers on the appellant’s version of events which no doubt had been stressed by the Crown Prosecutor.”

[191]Ibid, at 94 (White J agreeing with Ambrose J).

1. In this case, subject to those relatively limited parts of the interview that I will exclude as more prejudicial than probative because of comments and cross‑examination by the police officers and statements of fact about which the accused could not expect to have knowledge, I do not consider that any critical or argumentative observations will remain in the interview as opposed to questions in clarification of the accused’s answer.[192]

   [192]In R v Brauer, which is relied on by Mr Smith, evidence of a conversation between a police officer and the accused was excluded on the basis that it passed into the region of cross-examination.

1. The interview will still include, from p 26 of the transcript, quotes from the complainants’ statements on which the accused was asked to comment.  As I observed to counsel before evidence was called on the directions hearing, I have general concerns about the conduct of an interview in this way, because witnesses such as the complainants, H and Y, are required to give evidence on oath without their statements going into the jury room through the DVD of the police interview, possibly with a transcript to aid in understanding the interview.[193]  This is the concern expressed in Kallis.  Despite these concerns, I do not consider that the effect of admitting an interview of this nature in the present case would make the accused’s right of last reply illusory or would be otherwise more prejudicial than probative, because the jury would have with them in the jury room not only the complainants’ statements but the accused’s own story.  As I have indicated, this version of events is given by the accused in circumstance in which he denies many of the allegations and was prepared to clarify both the questions and answers he has given.  In effect, the jury would also be taking the accused’s statement into the jury room with them, whether or not he gives evidence.  This is distinguishable from the situation in Kallis.

   [193]See my comments at T 1-7 l 33 to 1-8 l 30.

1. Further, Mr Byrne’s concession that this approach by the investigating police may result in the prosecution getting evidence in through the back door if either or both women did not come up to proof in an important respect, is to be balanced by an appreciation that if that occurred the existence of their conflicting statements in the record of interview would also significantly undermine their credibility.

1. The concern identified by Mr Smith with reference to Kallis can be addressed by appropriate directions to the effect that:

·     The questions of the police officers, including the reading of the complainants’ statements for comment by the accused, are not evidence, and the evidence is instead found in the accused’s answers.

·     In the course of the interview, it is said that the accused made statements which the prosecution relies on as pointing to his guilt.  If you accept them as having been made by him and as true, it is up to you to decide what weight you give them, and what you think they prove.  He also gave answers which you might view as indicating his innocence.  You are entitled to have regard to those answers if you accept them, and to give them whatever weight you think appropriate, bearing in mind that they have not been tested by cross-examination.  In relation to both the answers which the prosecution relies on as indicating guilt, and those which point to innocence, it is entirely up to you what use you make of them and what weight you give them.[194]

[194]Supreme and District Court Bench Book at 24.3.

1. Accordingly I do not consider in the circumstances of this case that I should exclude the interview on the basis that its prejudicial effect exceeds its probative value, subject to the following passages which, after discussion during legal argument, have been agreed to be excluded by the Crown:

·     p 27 ll 2-4 (“Between … the night.”).[195]

[195]This is a statement about which the accused could have no knowledge.

·     pp 31 l 58 to 32 first line (I’ve … danger.”).[196]

[196]This is a reference to his state of mind, about which the accused could have no knowledge.

·     p 48 ll 56-57 (“Did … police.”).[197]

[197]This is a statement about which the accused could have no knowledge.

·     p 50 l 18 (“But … ground.”).[198]

[198]This is a statement by Sergeant Harrigan which could properly be regarded as a comment or cross‑examination.

·     pp 55 l 49 to 56 l 2 (“Okay .. Yep.”).[199]

[199]This is questioning by Constable Bakker which could properly be regarded as involving comment or cross‑examination.

·     pp 57 l 41 to 58 l 5 (“Um, paragraph eighteen … Yep.”).[200]

[200]This is a statement about which the accused could have no knowledge.

·     pp 59 l 55 to 60 l 11 (“Okay … Don’t know.”).[201]

[201]This is a statement about which the accused could have no knowledge.

·     p 74 ll 24-42 (“So … this.”).[202]

[202]This is questioning by both police officers which could properly be regarded as comment or cross‑examination.  I have not excluded ll 44-45 (Um, well … having sex.”) because Mr Smith argued that this should not be excluded if I admitted the interview.

·     p 86 ll 19-31 (“So … say.”).[203]

·     pp 89 l 45 to 90 l 52 (“Okay … [INDISTINCT]”).[204]

·     pp 92 l 12 to 93 l 60 (“So … ” to “and she.”).[205]

[203]This is repetition of an earlier question.

[204]This is a statement about which the accused could have no knowledge.  He had previously given a response that H was sitting on the road when he left, not lying in a foetal position as suggested by this portion of Y’s statement.  The probativeness of any response at this point is undermined by the [INDISTINCT] transcript.

[205]This could properly be regarded as involving the making of statements, comments and cross‑examination.

Conclusion

1. The record of interview by Constable Bakker and Sergeant Harrigan with the accused from 11.45 am on 5 February 2009 is admitted in evidence, subject to the exclusion of the passages identified in paragraph [286] of the decision.