R v Stoten

[2009] QSC 309

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stoten [2009] QSC 309

PARTIES:

R
v
DANIEL ARAN STOTEN
(applicant)

FILE NO/S:

Indictment No 384 of 2009

DIVISION:

Trial

PROCEEDING:

Criminal Application

COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2009

JUDGE:

Fryberg J

ORDER:

Application dismissed.

CATCHWORDS:

Criminal law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Particular cases – Police officer recorded conversation with accused during house search – Accused told lies indicative of guilt after warning

Crimes Act 1914 (Cth), s 23F(1)

R v Lobban (2000) 77 SASR 24, cited

COUNSEL:

J Hunter SC for the applicant
A MacSporran SC with C Toweel for the respondent

SOLICITORS:

Peter Shields Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

HIS HONOUR:  The accused Daniel Stoten applies to have a portion of a recording of a conversation between him and Officer Franklin of the Australian Federal Police excluded from evidence at his trial.  The application has two bases: first, that the statements made by the accused were caused by unfair conduct on the part of the police officer and second,

that the admission into evidence of those conversations would

be unfair because any probative value was outweighed by the

prejudicial effect of the conversations.

The conversations in question occurred in the course of a raid

by the police on the accused's home on Friday the 9th of June

2005.  Police executed a search warrant on the home in the

morning of that day.  When they arrived Mr Stoten was not

home; he was at the gym.  He returned home to find the police

conducting a search and his wife and a child in the house.

He gave evidence at his first trial, which resulted in a

deadlocked jury, that he was shocked and remained in a state

of shock throughout the time that the police were present.

The police were searching for evidence in relation to what was

suspected to be an attempt to defraud the Commonwealth, to put

it loosely, by the non-payment of tax.

The officer in charge had the events of the search videotaped

but at an early stage afforded the accused the opportunity to

telephone his solicitor.  It is not altogether clear whether

the accused did so but he certainly telephoned someone and

when the recording resumed did not dissent from the officer's

statement, "I am recommencing the tape because Mr Stoten has

finished his conversation with his solicitor."  In any event,

Mr Stoten was himself a solicitor and had legal training and

gave evidence that he was aware of his right to silence, at

least from the time of the subsequent warning which was given

by the police officer.

When the recording recommenced after Mr Stoten's telephone

call the first thing that was said was said by Mr Stoten: "I

know what it is, you guys don't think that that QH Data thing

is real, do you?" Mr Franklin, the police officer replied, "QHR?", and Mr Stoten said, "QH Data, our Chinese listings.  I'll take you on a flight right now to Beijing and I'll go right now if you want."  Evidently Mr Franklin did not

understand what this was about and he said, "All right.  Can

you just explain it to me."  Mr Stoten then launched into an

extensive explanation of what it was that he and his

co-accused were doing through their company and how it

involved a Chinese company to do data processing for them.

After he had been talking for some time - and I should

interpolate that while he was talking there was a telephone

ringing at one point and his wife walked past him and

Mr Franklin with their young child, and that there was the

sound of a child screaming or crying - after that had

occurred, the police officer gave a warning to Mr Stoten that

anything that he said was being recorded and might be used as

evidence in Court.

Mr Hunter SC, who appeared for Mr Stoten, expressly disclaimed

any suggestion that Mr Stoten was a “protected suspect” at

that point in time.  “Protected suspect” is a term defined in

the Crimes Act 1914 which was in force at the relevant time

and which, if Mr Stoten had been a protected suspect, would

have required the giving of a warning under s 23F(1) of the

Act.

It is material to set out the immediate conversation:

"DS:  And anyway so we went through (Butterworths) New
     Zealand, I think were the ones that used, they were a
     legitimate and they.

MF:  At this point I should warn you that anything that
     you do say is being recorded and it may be used as
     evidence in court.

DS:  Ok, do you want me to not say anything?

MF:  No, no, I want you to understand that we are
     recording.

DS:  Ok I better not.

MF:  If you feel you can legitimately explain it.

DS:  All I know that it's our Chinese, the way in which
     we do it.

MF:  What's the name of the company in China.

DS:  The data company that, I guess they are some sort of
     relationship with Amber Rock, which is OH Data.

MF:  OH Data, ok I can honestly say that's not a company
     that I have ever heard of. How is there relationship with
     Amber Rock.

DS:  (Wds) I don't know they must, I don't know if they

have some sort of part ownership in them or whether
     they've got some, whether it's just that Amber Rock use a
     whole bunch of different companies.

MF:  And what actually is Amber Rock.

DS:  Amber Rock is a brokerage company, they are the ones
     that source it all for us.
     MF:  Owned by whom.

DS:  Bya crowd from London, bunch of guys in London.

MF:  Ok, have you ever heard of the term the Galaxy Trust
     or the Dunedin Trust or the Gabriel Trust. No. What do
     Amber Rock do.

DS:  They do our brokerage, from the ground, I can show
     you the agreement, you'll see the agreement I'm sure.

MF:  Where about's is that.

DS:  That', that agreement is in the office, you can take
     me to the office now and I'll show you.

MF:  OK, we will take you to the office in a little bit.

DS:  Sure.

MF:  We'll just finish the search here and then we may go
     to the office."

I have had the advantage not only of the transcript but also

of the DVD in which the conversation is recorded.

On behalf of Mr Stoten, Mr Hunter submitted that the words

used by Mr Franklin in the context and with the tone of voice

that was used, had the effect of encouraging Mr Stoten to

continue talking.  They did so, Mr Hunter submitted, because

either they meant that there was an obligation for Mr Stoten

to continue talking, or they meant that it was in his

interests that he continue to do so.  Those were the only two

meanings which could fairly be taken from the words.  Either

was, it was submitted, a misrepresentation, and being a

misrepresentation of such a vital matter by a police officer

in such a situation was such an egregious breach of correct

behaviour that in my discretion I should exclude what

Mr Stoten went on to say in response.

Mr Hunter referred to the decision in The Queen v. Lobban

[2000] 77 SASR 24 at 35 and following.

I should at this point make it clear that Mr Hunter did not

submit that the discretion relating to admissions or

confessions was enlivened.  He conceded that that aspect of

the law had no application to a situation where there was no

confession.

I have set out above what Mr Stoten said after the warning.

In the course of that, Mr Stoten told five identified lies.

At the trial which is to be held early next year, the Crown

intends to rely upon those lies as evidence of a knowledge of

guilt.

Mr Hunter's submission is that it is of no consequence that

there was no reliance upon the statement that Mr Stoten could

say something if he felt he could legitimately explain it.

Mr Hunter submitted it was not necessary to show that there

was reliance on that.  All that was necessary was to show that

the statement caused the subsequent continuation of speaking

by Mr Stoten and what he said, the lies which he told, were

therefore caused by the misconduct of the police officer.  I

should add that in this context, Mr Hunter did not suggest

that there was intentional misconduct, but simply that that

was the effect of what was said.

The consequence of all this, it was submitted, is unfairness.

The unfairness was amplified by the factors of shock being

suffered by Mr Stoten, as well as the distractions which had

earlier occurred and to which I have earlier referred.

It seems to me there are several obstacles in the way of that

submission.  As I understand the recorded conversation,

Mr Franklin's statement "if you feel you can legitimately

explain it" was brought about by two things that were said by

Mr Stoten.  First, he'd begun to give an explanation of what

he and his co-accused had done in relation to Butterworths New

Zealand, and made the point that the things that were done

were legitimate, and, second, having been interrupted in the

middle of that explanation by the police warning, Mr Stoten

said, "Okay, do you want me to not say anything?"  It seems

that at that point Mr Stoten had embarked upon what was

apparently intended to be an explanation of the legitimacy of

the operation - and it is not suggested that anything said up

to that point was a lie - and had understood the warning which

was given by way of interruption to suggest that Mr Franklin

did not want him to say anything.

Mr Franklin's responses were, in my view, an attempt to

correct that misunderstanding and a correction which was

rightly given, for it would have been unfair to Mr Stoten to

allow him to continue under the evident but wrong belief that

the police did not want to hear any legitimate explanation

which he might have had.  It is in response to that and to

Mr Stoten's further statement, "Okay, I'd better not", that is

"I better not say anything", that Mr Franklin said, "If you

feel you can legitimately explain it".

Nothing that was said by Mr Franklin, in my judgment, could be

properly construed as an attempted or as even having the

effect of misleading Mr Stoten.  It does not seem to me that

the two options put forward on Mr Stoten's behalf, that is an

obligation to go on talking or an assertion that it was in his

interests to go on talking, were inferences which ought to

have been drawn in the conversation.  The effect of the

conversation was neither of those things; it was simply to

correct the misunderstanding that Mr Stoten evidently had that

the warning meant that Franklin did not want him to say

anything, or that he'd better not say anything, and that he

was entitled, if he wished, to give a legitimate explanation.

So that is the first obstacle.  What was said did not carry

the meaning which is contended for by the applicant.

The second obstacle is that it does not seem to me that what

Mr Stoten subsequently said can reasonably be held to have

been caused by what was said by the police officer.  An

invitation to provide a legitimate explanation, if there is

one, and it wasn't put as bluntly as that, is not an

invitation to embark upon a course of lies.  There is no doubt

that they were lies.  Mr Stoten admitted that in the evidence

at the first trial, which is now before me.  He sought to

explain them as a result of the state of shock that he was in.

He didn't suggest in that evidence that they were the result

of his understanding from Mr Franklin that he was obliged to

continue talking or that it was in his interests that he

continue talking.  He did not suggest that that was the effect

which the words had upon him in that evidence, nor did he give

evidence to that effect before me today.

Mr Stoten, as I have said, is a solicitor and, I infer, had

obtained legal advice, and, as I have said, he understood the

warning to mean that he did not need to say anything if he did

not wish to.  He gave that evidence at the first trial.

Consequently, the element of causation upon which the

application relied has not, in my judgment, been demonstrated.

The lies were not induced or caused by what Mr Franklin said.

That is enough to dispose of the first ground of the

application, but I should add that even if I were of a

different view of the facts, it does not seem to me that this

is a case where the unfairness discretion would be exercised

favourably to the accused.  It is a long ask, to say the

least, to come to Court and say that evidence obtained not as

a result of any intentional conduct by a police officer but as

a result of an accused person misunderstanding his right to

silence - a misunderstanding fostered unintentionally by the police - and as a result of that misunderstanding embarking upon a series of deliberately deceptive lies, should be excluded in the public interest, or as a matter of unfairness, or, really, on any other visible basis.

I need not analyse the correct exercise of the discretion,

however, beyond saying that I would not be minded to exercise

it.  For the reasons I have already given, the occasion to

exercise it does not arise.

The second ground was that the probative value of the evidence

was outweighed by the prejudicial effect.  Mr Hunter did not

address that ground in his oral submissions.  No prejudicial

effect of the necessary nature has been identified.  The only

prejudice suffered by the accused is proof of the case against

him.  The ground is simply not made out on the material before

me.

It follows that the application must be dismissed.

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