R v Sorensen - [2009] QDC 415

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Sorensen [2009] QDC 415

PARTIES:

R

V

PAUL EDWARD SORENSEN

FILE NO/S:

1469/2009

DIVISION:

Criminal

PROCEEDING:

Directions hearing

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

22 December 2009 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

10, 11, 15, 18, and 22 December 2009

JUDGE:

Irwin DCJ

ORDER:

The records of interview with the accused are excluded

CATCHWORDS:

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

Criminal Law Amendment Act (Qld) 1894, s 10

Evidence Act 1977 (Qld), s 130

Police Powers and Responsibilities Act 2000 (Qld), s 7, s 403, s 404, s 431

Schedule 10 (Responsibilities Code), s 32, s 34, s 36, s 37

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

Clelland v The Queen (1982) 151 CLR 1, applied

Pollard v The Queen (1992) 176 CLR 177, applied

Reg v Ireland (1970) 126 CLR 321, applied

R v Read [2005] QDC 403, cited

The Queen v Swaffield (1998) 192 CLR 159, applied

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

Van der Meer v The Queen (1988) 62 ALR 656, applied

COUNSEL:

K.J. Spinaze for the Crown

W.R. Read for the defendant

SOLICITORS:

Director of Public Prosecutions (Queensland) for the Crown

Michael Mason Solicitors for the defendant

HIS HONOUR: Good afternoon.

MR SPINAZE: Good afternoon, your Honour. I do apologise for my tardiness.

HIS HONOUR: On behalf of the Courts, Mr Spinaze, I should say that it just seems to have been some unique feature associated with the locking device to this room, and I apologise that that happened.

MR SPINAZE: The Crown is not actually concerned, your Honour.

HIS HONOUR: Thank you. I'll note that for the record. I'll just indicate in advance it might take me some time to deliver this decision. This is an application by Mr Read on behalf of the defendant, Paul Edward Sorensen, to exclude from evidence five electronic records of interview which the prosecution seeks to tender in support of its case at trial.

The relevant records of interview sought to be excluded were each conducted with the defendant by plain clothes constables Gough and Orman at the Upper Mt Gravatt Police Station between 12.27 a.m. and 4.17 a.m. on the 30th of June 2007. The interviews were between the following times: 12.27 a.m. and 1.07 a.m.; and then after a seven-minute break, between 1.14 a.m. and 1.56 a.m.; after a further eight-minute break, between 2.04 a.m. and 12.19 a.m.; after a 44 minute break, between 3.03 a.m. and 3.05 a.m.; and after a further 55 minute break, between 4 a.m. and 4.17 a.m.

This is subject to the breaks interviews which were conducted over a period…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Sorensen

Details

AGLC: R v Sorensen [2009] QDC 415
Case: [2009] QDC 415
Decision Date: 22 December 2009 (ex tempore)

CaseChat Overview and Summary

The case of R v Sorensen came before the court where the defendant was charged with various criminal offences. The primary issue was the admissibility of statements made by Sorensen during an interview with police officers. The crux of the dispute revolved around whether these statements were involuntary due to the police's non-compliance with statutory requirements. The court had to determine whether the statements were obtained in a manner that rendered them inadmissible under the common law discretion to exclude unfair evidence, the unfairness discretion, and the public policy discretion.

The court examined whether the police officers' failure to adhere to statutory obligations, which included the requirement to provide the accused with access to legal advice, rendered the statements involuntary. The court also considered the broader implications of admitting such statements, particularly whether it would be contrary to public policy to allow evidence obtained through non-compliant police conduct to be used against the accused. The court had to balance the probative value of the statements against the potential unfairness and public policy considerations.

In its reasoning, the court concluded that the police officers' non-compliance with statutory requirements led to a significant unfairness in the manner in which the statements were obtained. The court found that the accused was effectively denied the opportunity to seek legal advice, which is a crucial aspect of ensuring that statements are voluntary. Given this, the court exercised its discretion to exclude the statements under the unfairness and public policy considerations. The court held that allowing such evidence would not only be unfair to the accused but also undermine public confidence in the criminal justice system.

The final orders of the court were to exclude the records of the interview with Sorensen. This decision underscores the importance of procedural safeguards in ensuring the fairness of criminal proceedings and the reliability of evidence obtained by law enforcement agencies.

Orders

Orders of the court

The records of interview with the accused are excluded

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Sorensen [2009] QDC 415
PARTIES:	R V PAUL EDWARD SORENSEN
FILE NO/S:	1469/2009
DIVISION:	Criminal
PROCEEDING:	Directions hearing
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	22 December 2009 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	10, 11, 15, 18, and 22 December 2009
JUDGE:	Irwin DCJ
ORDER:	The records of interview with the accused are excluded
CATCHWORDS:	CRIMINAL LAW – Evidence – admissibility – confessions and admissions – whether statements made by accused during an interview with police officers involuntary – whether statements were made by the accused following police non‑compliance with statutory requirements – discretion to exclude – unfairness discretion – public policy discretion Criminal Law Amendment Act (Qld) 1894, s 10 Evidence Act 1977 (Qld), s 130 Police Powers and Responsibilities Act 2000 (Qld), s 7, s 403, s 404, s 431 Schedule 10 (Responsibilities Code), s 32, s 34, s 36, s 37 Bunning v Cross (1978) 52 ALJR 561, 43 ALR 619, applied Clelland v The Queen (1982) 151 CLR 1, applied Pollard v The Queen (1992) 176 CLR 177, applied Reg v Ireland (1970) 126 CLR 321, applied R v Read [2005] QDC 403, cited The Queen v Swaffield (1998) 192 CLR 159, applied Tofilau v The Queen (2007) 231 CLR 396, applied Van der Meer v The Queen (1988) 62 ALR 656, applied
COUNSEL:	K.J. Spinaze for the Crown W.R. Read for the defendant
SOLICITORS:	Director of Public Prosecutions (Queensland) for the Crown Michael Mason Solicitors for the defendant